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Who Is the “Right” Expert to Go to for Advice on Estate Planning?

Who is the “right” expert to go to for professional advice on estate planning and taxes: an estate lawyer, a Certified Public Accountant or a Certified Financial Planner?

Estate Planning LawyerThe answer is that to put in place a solid estate plan and maximize estate tax savings is to have all three professionals on your team working together. 

An experienced estate attorney will address your general estate tax questions and address other legal implications of an estate plan involving a business and special family situations, such issues involving a special needs individual, marital issues and family members that have substance abuse issues.  There are many different estate planning options which can involve a will or more complex documents such as revocable trusts, irrevocable trusts, special needs trusts, a power of attorney, and other vehicles that may fit your situation and offer the opportunity not only to save taxes but protect you and your family from creditors.  An attorney is often the best expert for helping you choose and implement the plan that will benefit and protect you and future generations. 

A Certified Public Accountant (CPA) will advise clients regarding taxes and will usually have a working knowledge of changes to the tax code that are taking place and are coming down the road.  Your CPA can review and advise a client not only about their personal tax situation, but also business taxes and investments. However, keep in mind that most estate planning involving taxes will require legal documents to be drafted and this should only be done by an experienced estate planning attorney working hand in hand with the CPA..

A Certified Financial Planner (CFP) should also be part of your team.  They will help you design strategies using investments, 401(k)’s, IRA’s, life insurance and other options to grow your estate in a tax efficient manner before it is passed on to your heirs.  A CFP can also make sure that all your beneficiary designations on retirement accounts and annuities are correct and they can keep an eye on the big picture of your overall estate plan so that through proper planning the value of your assets can grow.

Finally, as Anthony J. Vignier, Esq., explains, consider that all three professionals, an attorney, a CPA and a CFP, are all fiduciaries that must act in your best interest.  Today, having all three professionals on your team working together is a must if you want to protect your wealth and pass on your legacy to future generations to come.

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Advance Directive Living Will

Estate Planning LawyerThere may come a time in your life when you can’t make your own health care decisions for any number of reasons, including injury or severe illness.

However, one thing you can be in control of and that’s being prepared in advance in case of that awful day happening.

This is when an advance directive document comes into play as they tell your medical providers and caregivers what you want to happen if you can’t make these decisions on your own.

Advance Directives

So, putting it simply, a living will is an advance directive that allows you to make decisions about medical treatments should you be unable to communicate them – it’s, therefore, best to make a living will when you’re healthy and before you have any surgery.

You don’t want your family arguing or trying to guess what you wanted to have done if you become incapacitated so, a living will is essential as they are detailed and explain what you wish for.

There are several advance directives, including a health care power of attorney, a living will, and a DNR (do not resuscitate) order.

Having it written down in a document can give you extreme peace of mind that in the event of an end-of-life situation, you will be taken care of medically in a way in which you wish – including organ and tissue donation.

A living will could be thought of an advance directive document that can list your end-of-life care medical preferences.

It is intended to be legal evidence of your medical care wishes in certain health care situations, but it doesn’t give anyone the ability to make decisions for you.

Health Care

Living wills often include medical treatments you might or might not want should you become incapable of making the advance care decision yourself.

These can include:

  • DNR (do not resuscitate) orders
  • Use of oxygen by intubation
  • Dialysis
  • Hydration and assisted feeding
  • Pain medication
  • Organ donation
  • Feeding tubes
  • What type of funeral preferred
  • Decision-makers for you
  • Blood transfusions and any surgery
  • Active intervention for purposes of changing your incapacitation
  • Whether you want to remain in the hospital or go home
  • Any type of medication

Durable Power of Attorney (POA)

Durable powers of attorney help you plan for unexpected medical situations and any decline in your mental abilities,  and they can also ensure that your finances are taken care of.

Having these legal documents in place helps eliminate any confusion and uncertainty when family members have to make tough medical decisions in your place.

A general durable power of attorney both sanctions someone, such as a family member, to act in a wide range of legal as well as business matters and remains in effect even if you are incapacitated.

The POA can take effect immediately or can become effective only if you are incapacitated – however. They cannot make a do-not-resuscitate (DNR) order.

Therefore it allows someone, usually loved ones, to make decisions on your behalf.

Medical Power of Attorney

So, if you are unable to make decisions about your health care and want to appoint someone to communicate with medical staff and to make medical decisions for you – a medical POA ensures someone speaks for you to make sure your wishes are carried out if you are terminally ill.

So, this type of legal document details the medical treatment you want if you are at the end of your life and can no longer communicate.

As the Eastman Law Firm can explain, an attorney for health care names someone to make medical decisions any time you are unable to do it yourself, even if you are expected to make a full recovery.

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Do You Need A Trust, Or Will A Will Suffice?

Estate Planning LawyerWhen it comes to estate planning, there are many decisions to make, and among the most important is whether you should utilize a Living Trust or a simple Last Will & Testament. This may seem like a question with a straightforward answer, but there are many factors at play.

One of the most important functions of a Living Trust is to prevent your estate from going through the probate process. Depending on your state, county, family, and net worth, this can be a lengthy and costly court process that your family will have to endure if you only have a Last Will & Testament. Some wills contain trust provisions, but in order for those to come into effect, the will must go through probate. However, if your assets are in the name of a Living Trust, those assets will not have to go through probate, and they can be distributed to your family members as soon as possible.

There are several familial and asset factors that determine whether you are a likely candidate for creating a Living Trust. Contrary to popular belief, most people who utilize living trusts are not uber-wealthy. In fact, only a few people are subject to federal estate taxes every year, and most states don’t have an estate tax of their own. Trusts are more likely to be used by people on a second or third marriage, who want to avoid probate because of potential conflicts between their children and their current spouse. These conflicts are not limited to blended families, however. Those who have difficult children, or even a difficult child-in-law, can benefit from avoiding the potential pitfalls of a lengthy probate. Living Trusts are also useful to those who own property in more than one state, since probate is generally required in every state you own property in. Because assets in a Living Trust are not subject to probate, this can save years and thousands of dollars in court and attorneys’ fees.

Many people believe that their lives may become overly complicated if their assets are in a Living Trust, but with the most common type of trust, your life doesn’t really change. You can buy, sell, or spend assets as you please, you don’t need a separate tax ID, and you can even keep your Homestead Exemption. But as the lawyers of Oren Ross & Associates LLC can explain, because Living Trusts are designed to hold your assets while you are alive, they are more complicated documents, and are thus more expensive to create. While this cost may seem prohibitive to some, it is crucial to factor in the potential time and money that could be wasted when you pass away, and when your spouse passes away. It is important to have a Last Will & Testament as part of your estate plan, but you might want to consider a Living Trust if you would prefer to keep your estate out of probate court.




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Features of Revocable and Irrevocable Trusts You Should Know

Estate planning lawyerWhen determining your estate’s future distribution with the protection of assets and minimizing estate taxes as a goal, it’s essential to take time and learn about the features and differences between Revocable and Irrevocable Trusts. Both of these unique estate planning options have specific benefits, disadvantages, and conditions for use that you should be familiar with before choosing to use one as an end of life planning option.

The fundamental similarity between these two types of Trusts is their goal of saving and later distributing your assets after your death by your choosing and direction. These are useful tools that can save on associated taxes later, protecting the financial future of your surviving family members.

What is a Revocable Trust?

If you want a Trust that allows you to make changes or essential updates whenever you want, a Revocable Trust is probably a smart choice. This estate planning option will enable you to maintain control over your assets and estate while still alive. Regular Trusts don’t offer this flexibility, instead acting as the owner for you once funded. Although, once you have passed, your Revocable Trust will become irrevocable and unchangeable.

Key features of Revocable Trusts include: 

  • Avoids probate
  • Flexible
  • Ongoing control
  • Can assign a Trustee in case of incapacitation

While the above features are quite beneficial, there are disadvantages of a Revocable Trust to remember before creating one: 

  • Constant updating
  • Additional administrative duties
  • No protection for assets
  • No tax advantages

What is an Irrevocable Trust?

Choosing an Irrevocable Trust is a commitment to very limited opportunities for modifying or terminating the Trust. While not impossible, making any change usually requires approval from all the designated beneficiaries. The limited flexibility of this plan is difficult to navigate without an experienced estate planning attorney’s help, but this Trust has features that make it worthwhile.

  • Asset protection
  • Minimizes estate taxes
  • Government benefit opportunities
  • Access to government benefits

Those choosing to use an Irrevocable Trust as part of their estate planning should also be aware of the disadvantages of this option, including:

  • High tax on income earned by the Trust
  • Expense and hassle of an additional tax return for the Trust
  • Difficult legal language and terms that increase possible errors

Speak with an Experienced Estate Planning Attorney About Your Options

When creating a Trust, you have one main goal in mind: protect your estate assets to provide financial security for your family when you pass. As the attorneys at Dana and Associates, LLC, can explain, doing so with a Revocable or Irrevocable Trust could be the best option, but you first need to determine which suits your situation best.



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What Does a Power of Attorney Do?

Estate Planning Lawyer

A power of attorney is a document you’ll make which outlines an agent who you want to act on your behalf if you are unable to do certain things. This is often when you are incapacitated due to aging, injury or illness. The agent you choose in your power of attorney is someone who will be expected to place your interests ahead of his or her own. This is why it’s important you choose someone you trust. In a power of attorney, you can give the agent power to make financial decisions, monetary gifts, guardian recommendations and healthcare decisions. The following are four types of power of attorneys.


A general power of attorney allows the agent to do almost anything you would normally do. This includes managing your money, opening new bank accounts, making purchases, transferring money, paying medical bills and anything else similar to these actions. If you become incapacitated, the court terminates the power of attorney arrangement. It would also be terminated if you died or revoked the power yourself.


A durable power of attorney allows an agent to make all the abovementioned decisions even after you become incapacitated. While a general power of attorney may be used while you are fit to make your own decisions and possibly just out of the country, a durable power of attorney extends beyond that to a time in which injury or illness would prohibit your ability to make decisions. Your durable power of attorney agent could make medical decisions if you are in a coma, for example.


There are special circumstances in which someone might appoint a special power of attorney to handle one specific thing. For example, if you are going to be out of the country, but you need to sell your home in the states, you could appoint someone as a special power of attorney, simply to conduct the sale of your home. Once the sale has been finalized, that individual has no more authority over your estate.


Just as it sounds, a springing power of attorney “springs” into action when a certain event occurs in your life. This is often when you are incapacitated and unable to handle your own affairs. Although this may sound similar to a durable power of attorney, it’s different because a durable power of attorney is in effect from the time the document is signed. A springing power of attorney is not in effect until the event specified occurs.

Getting Your Affairs In Order

You never know when something unexpected will happen, which is why it’s important to get your affairs in order as soon as possible. Contact an estate planning lawyer, such as from Citadel Law Firm, to get started today.

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Planning for Loved Ones with Dementia

Estate Planning LawyerDementia is a sinister ailment that comes with age. It leaves us bereft of our reason and awareness. Unfortunately, we have very little idea of who and when we may fall victim to this condition before it happens. If we wait too long, it can preclude the ability to prepare, resulting in severe legal and financial consequences. 

Testamentary Capacity Is Required to Execute Estate Planning Documents

Dementia impacts many elements of legal planning. For example, signing a will – can a person with dementia sign a will?  The law requires that the person signing a will must have “testamentary capacity” in order for the will to be  valid. This means that the person signing must have the ability to make consistent reasoned decisions about their person and property and basically understand what he or she is signing. If capacity comes and goes as is often the case with dementia patients, a moment of clarity can be enough to establish capacity. If the signer understands the nature and consequences of their act at the specific time they are signing their estate planning documents, the person has capacity. 

Some general criteria for capacity would be the ability to:

  • Remember who relatives are, and to articulate who should inherit their property
  • Understand the nature and extent of their property
  • Understand the document of a will, and how it distributes property
  • Understand how all of these things are related; i.e. that the purpose of the will and its role in distributing  property to family members

Anyone with an interest in an estate can contest a will if they believe the signer lacked the mental capacity to sign and understand it.  Although there is a general presumption of capacity under law, it is important for the attorney to ensure that the person signing the will is competent. For a person with diminished capacity who has a moment of clarity at the time of signing, the attorney may consider having the signing videotaped, or have witnesses speak to the competency of the signer at the time of execution in order to evidence or defend the validity of the will. 

A Good Power of Attorney Can Help Family Members Make Decisions

It’s important to have a good, durable power of attorney to help plan for all eventualities and enable family members to make important decisions on behalf of someone who lacks capacity. A power of attorney that grants only limited powers may not be sufficient to protect the individual’s interests and could result in a lengthy court battle to make important decisions for the benefit of an elder with dementia.

One example of how a deficient power of attorney can impact a family is the case of a child who may be prohibited from pursuing Medicaid planning on behalf of a parent because a power of attorney lacks certain powers. If the power of attorney does not authorize the child to make donations, establish trusts, engage in self-serving transactions, or other necessary steps to qualify a parent for Medicaid, the financial consequences could be devastating. 

For these reasons, it is critical to pursue proper legal planning for a family member who has dementia – before it’s too late, and important decisions regarding care are left to the whims of the court system.

An Experienced Estate Planning Attorney Is Key

Even the best power of attorney may not be capable of solving every problem, so it’s important to consult a knowledgeable estate planning attorney who can help you navigate these situations, and prevent deficient documents from interfering with the care or legacy of a family member who has dementia. 

Thanks to our friends from Theus Law Offices for their insight into estate planning.

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Is A Beneficiary Designation An Estate Plan?

Estate Planning LawyerWhat is a beneficiary designation? It is a form you fill out that says who will receive some benefit when you die. Even though that should be a serious consideration, most people do not give it any thought when they sign it. Why? Because you complete a beneficiary designation form at stages in your life when you are not thinking about your estate plan. Think about it. Where are you when you are signing a beneficiary designation? In an insurance agent’s office, at a financial advisor’s office, in a bank, at the employee-benefits office of your job. There is never an estate planning attorney anywhere in sight.

At one stage, you may be starting out in life. Perhaps you started a new job. Or maybe your business just grew to the point where you started a retirement plan. Or maybe you just had your first child. You sign the papers without much thought, so you can get back to the exciting and interesting things in your life.

Years later, you have changed jobs. Or maybe you sold your business, and converted that 401(k) to a regular IRA, or a retirement annuity. Again, papers are put in front of you, without much consideration, you sign them, and move on. This time, maybe you have a niggling doubt in your mind. Why? Because you put your spouse as primary beneficiary and then your kids next. That gives you pause because your spouse has never managed money in his or her life. And your kids are very young. Surely you should think about this. You console yourself that when you have time you will give more consideration to the choices made on that beneficiary designation form.

Next, you have a kid or two going to college. Or a kid getting married. Or maybe, you are approaching retirement. You sign some more papers, again, perhaps considering or not considering the consequences. But telling yourself that you are definitely going to set aside some time to give your estate plan serious consideration.

I’ll share an anecdote to underscore the point. Once there was a man who started out a new job in his twenties. He had just married. He stayed at that job for twenty-five years, vesting in all kinds of retirement and death benefits. It was good job. But some time in between the start of that job, and the third year, he had divorced. Now, twenty-two years later, he had two young children with another partner. And then he died. Guess who got all of his death benefits from the job? The first wife. Why? Because of the beneficiary designation he signed when he started the job.

In the life of your family’s finances, most people do not realize how momentous a simple thing like a beneficiary designation can be. In a sense that form is a plan. By saying who gets this money, you are planning for the future. But it is a future when you are not there to help the people you care about. But is a beneficiary designation a good plan? Even if you are content that you have designated the right persons, should you feel like you have an estate plan?

The thing to know is this: a beneficiary designation is a straight shot to your beneficiary. Using a beneficiary designation as an estate plan is like trying to hit a target with a rifle. But the target is attached to something across the street – a car, or a tree. And the rifle is on a timer. That rifle is going to go off any time between now, and twenty to forty years from now. What is the chance that rifle is going to hit the target? Not very good. And that is the same thing with a beneficiary designation as an estate plan. It is not likely to hit the target. The target in this case, is your estate planning goals.

In estate planning it is often the simplest of things that can be the most impactful. One of the most well understood documents that is completely misunderstood, in my experience, is the beneficiary designation. Why? Because a beneficiary designation is not an estate plan. A plan has contingency instructions in it. A plan defines people for their role in your life, and not necessarily by their name. A plan provides protections for the people you care about, based on the vulnerabilities that you know they have. None of that can be accomplished with a beneficiary designation. And yet, that beneficiary designation may be directing the immediate payout of a huge percentage of the net worth of your estate.

Before you complete a beneficiary designation, you should have an estate plan. That means setting goals, and getting advice on how to achieve them.

Thanks to our friends from Penbay Estate Planning Law Center for their insight into beneficiary designations.



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Discussing Estate Planning with Your Family

Planning one’s estate is one thing, but discussing it with family members is often something else. It can be awkward, depressing, and sometimes met with hostility by those who do not want to ponder the possibility of losing a loved one. It’s why many people do not plan their estate—they do not want to ruffle feathers. And often it’s the individuals themselves who do not want to face the fact of their mortality and that everyone dies eventually. These are unfortunate scenarios because when an estate plan is not in place, after a loved one’s passing there may be many questions, leaving loved ones to only wonder what the decedent’s final wishes may have been. It can also place the estate in jeopardy of having to undergo probate, a process that can be avoidable, but without a will or trust is often required. The resulting probate will cost the heirs time and money.

Family Discussions and Estate Planning

It’s a common scenario: neither the parents nor their adult children wish to discuss end-of-life and post-life preferences of the parents. Many choose to postpone these conversations until or unless a life-threatening health condition arises. But, sometimes this is too late. The important issues that need to be discussed may include any or all of the following:

  • What the parents desire for their remains (whether it should be a burial or cremation or even where they should be laid to rest).
  • Retirement finances: covering their cost of living, the ability to pay taxes, and who will inherit the retirement funds.
  • Elderly care whether it’s at home partial or full-time care, retirement or nursing facility residency, etc. Alternately, should one or more children assume care for the elder should they be unable to care for themselves.
  • Who will inherit which assets and in what percentage. For example, will the ownership of the family home be equally shared among the children, will all the children inherit equal amounts of cash funds?

Counseling as a Possible Solution

Everyone is different. People communicate in different ways and their emotional triggers vary from one person to the next. Difficult or awkward topics can often be bridged when the conversation participants use certain verbal and body language cues to help develop a safe environment. These tools can be taught by a trained and licensed counselor. It may also be helpful to hold conversations about estate planning and related issues in a counseling office because of its neutral setting. If the elders or the children do not wish to participate in the discussions in a counseling arrangement, one or both can still benefit from gaining insight from a therapist in how to lovingly approach these conversations with the other family members.

Reach Out for Help

If you would like to formalize your final wishes in order they will be legally binding, contact an estate planning lawyer. If you would like help in learning ways to approach family members to discuss estate planning issues, consider reaching out to a licensed therapist.

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Different Kinds of Trusts

Different Kinds of Trusts
You might have heard about irrevocable and revocable trusts or special needs trust, but did you know there are more than 30 different kinds of trusts? Many of these are complex and applicable to very specific situations. With any trust you will need a trust lawyer, but when it comes to these rarer types of trusts, it is essential to choose an experienced trust lawyer, like a trust lawyer. 

Rare Types of Trusts
There are many types of trusts. Some of the rarer forms include:

Credit Shelter Trust – A credit shelter trust is also known as a “family trust” or a “bypass trust.” You will need to draft a will that bequests an amount to the trust up to, but not more than, the estate tax exemption. From here, the remainder of your estate can be passed to your spouse tax free. One of the biggest benefits to this trust is that as soon as the money is placed into a bypass trust, it becomes free from estate taxes. 

Generation Skipping Trust – Also known as a dynasty trust, it allows you to transfer a very large amount of money into the trust, and still be free from taxes. In general, this trust must be for at least two generations your junior (i.e. at least your grandchildren). 

Qualified Personal Residence Trust – This trust can remove the value of your home or another property from your estate. These trusts are most beneficial when you have property that will likely appreciate in value. 

Irrevocable Life Insurance Trust – As a trust lawyer might tell you, this trust is ideal when you have life insurance and would like to remove it from your taxable estate, pay estate taxes, or provide your beneficiaries with money for various reasons. In order to do this, you will need to remove your policy from the estate. Your ownership rights to the policy will need to be surrendered, and you can no longer change it or borrow against it. In return, the proceeds can pay off any estate costs after your death. It also provides your heirs with tax-free income. 

Gun Trust – A gun trust is ideal for anyone who has a gun collection with Class 3 weapons and select other destructive devices. The trust enables property to be transferred to and from the trust, and for both beneficiaries and trustees to be named.

 Irrevocable Life Insurance Trust
These trusts are integral to estate plans with large amounts of wealth. At this time, the federal government gives individuals a $2 million tax exemption. Any portion of an estate beyond that amount is taxed as high as 45 percent. Estates worth more than 2 million can benefit from having life insurance as an estate planning tool. As an estate planning lawyer might tell you, there are flexible approaches to exclude life insurance proceeds from the estate of the surviving spouse and that of the first spouse to pass away. These are complicated trusts and should be handled by an experienced trust lawyer. 

The Bottom Line About Trusts
Estate planning is complicated and demands professional oversight by a knowledgeable estate planning lawyer. If you would like to learn more about your estate planning options, and what trust may be right for you, please call a lawyer today.

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How to Protect Your Assets from Medical Bills with a Living Trust

Protecting Assets

Protecting your financial future from medical bills that result from a serious illness or injury can help you prevent bankruptcy and other catastrophic debt. While surgery, physical therapy, and other medical costs can skyrocket out of control quickly, establishing a living trust before they occur may help you protect your savings and other assets.

Consider Your Medical Risks 

Before you can set up a living trust to protect your finances, it is important that you consider your risk connected with the likelihood that you will incur large medical bills. To do so, you can review several different factors that may include:

  • Pre-existing medical conditions 
  • Your current health/recent medical procedures 
  • Your risk for stroke or heart attack 

If you are unsure about your current medical status, you may want to have a complete medical checkup and ask your doctor to check for any issues that could cause your health to decline over time, such as type II diabetes.

Review Your Current Assets 

Before you hire a lawyer to help you draft a living trust, you may want to gather and review your assets so you understand what your belongings are worth. Include cash, checking and savings accounts, cars, and real estate. You may want to keep in mind that vehicles and real estate may depreciate in value over time, so occasional adjustments of the total worth may be necessary.

Create an Irrevocable Trust 

You may be able to protect your assets with more certainty if you create an irrevocable trust. Unlike a revocable trust, this type of document cannot be changed or amended in any way once it is set up. This can help guard the contents of the trust from creditors, including hospitals and other medical facilities. This can be especially helpful if you want to protect assets for your children or grandchildren and ensure the money is there for the future, even if you do incur significant medical costs due to a sudden illness or disability.

Speak to an Attorney 

While it is possible to set up a living trust on your own, doing so with the assistance of an attorney can give you peace of mind that the documents are valid and correct. An estate planning lawyer may also be able to advise you about how to organize your assets, how much to add to the trust, and what kind of taxes you may have to pay on it.

A trust can protect your assets from medical expenses, especially when an illness or accident causes catastrophic debt. Contact a lawyer today for additional information and assistance.

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Understanding What a Will Is and What It Does

Will Lawyer

Most people have heard of a will, although few people fully understand what a will is used for. If you are planning your estate, this is something essential for you to know. You may have heard that there are alternatives to a will, and this is true. However, it is recommended that everyone has a will and the alternatives are in addition to it, rather than instead of it. Learn what a will is and what it does.

What a Will Does

A will is a legal document that describes what your wishes are for after your death. Its primary functions are:

  • Distributing your possessions – The most famous and essential function of your will is to determine who will receive your possessions. You can divide your estate up and choose who will receive each individual item. There are only a few limitations on how you distribute your possessions.
  • Naming an executor – Your will needs to have an executor. This is someone who will ensure your wishes are carried out correctly. You can name the executor of your will in the will itself. If you do not name an executor, the courts will assign one instead, which will lengthen the probate process.
  • Naming a guardian for your children – If you have children who are still minors, you need to designate who will become their guardian. You should also designate who would become the guardian in the event that both you and your spouse die at the same time.

Many people do not realize that a will does more than simply designate who receives their estate. These other legal matters make it important to have one.

What a Will Does Not Do

It is important to know what your will cannot do. The biggest misconception is that a will can provide funeral instructions. A will cannot do this, although it can bring attention to a separate document that outlines your funeral instructions. This will ensure that your executor knows about it.

A will also cannot set conditions on your possessions. For example, if you wanted to leave your granddaughter college tuition, but only until she has finished college, your will would not be able to do that. You may want to consider setting up a trust instead, which can place any number and kind of conditions on your possessions that you desire.

The first step in setting up your will is speaking with a will lawyer. A legal professional will be able to help you with every step in the process.

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What are Alternatives to the Probate Process?

Estate Planning Lawyer

If property goes to probate, then a judge determines how assets are distributed among your beneficiaries. Probate judges are experienced with this, but that doesn’t guarantee that they will make the right choices. Someone who appears to be the proper heir “on paper” may not be the person you would like to inherit your estate. Some considerations involved in the process include:

  • Time: The probate process takes time. Mid-sized estates may take as many as two years to process in probate. If the judge’s decision is contested, it can take even more time. A small, uncontested estate may go through probate in just 18 months. However, if there are disputes, cases can take as much as ten years to complete. As the probate process drags out, legal fees stack up.
  • Money: The probate process costs money. All the legal costs and those for the executors and attorneys eat into the estate. The heirs will be distributed what’s left.
  • Privacy: Privacy is not guaranteed with probate. Both the assets and family information can become public record. As disputes heat up, family arguments and secrets could be revealed.

Alternatives to Probate

If you want to avoid the pitfalls mentioned above, there are alternatives to probate. Options that can ensure your heirs are not subject to the probate process include:

Revocable living trust: A revocable living trust holds the property via a trustee, so it is not counted toward the probate of the estate. Federal estate taxes must still be paid. However, the estate will transfer to the chosen heir(s) quickly. To create a revocable living trust, the estate owner must create a trust document and select the beneficiaries that they want to inherit the trust.

Joint ownership of property: If another person is listed on the title of the property, then it goes to that other person automatically after death.

Pay-on-death accounts: Retirement and bank accounts can be designated pay-on-death accounts by filling out a single form. The form lists the beneficiary the estate owner wants to have the funds. These  automatically transfer to the beneficiary upon death. 

Living trust: A living trust is similar to a will. It distributes your assets upon death but skips the probate process. Assets are placed in a trust managed by a trustee.

Joint tenancy with right of survivorship: Joint ownership of property keeps the real estate out of probate. Anyone’s name can be added to the title. The estate will pass to the survivor.

If the state you live in allows it, tenancy by the entirety enables married couples to skip probate. The property may also be designated as a community property with a right of survivorship.

A Will is not Enough

Don’t assume that a will is sufficient to keep your estate out of probate. An attorney can help you create a concise estate plan that works around the probate process. Contact a lawyer for more information.

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