Trust, Estates and Probate
Trust/Living Trust
What is the advantage of a Trust?
Property left through a trust or living trust does not go through probate court prior to reaching the beneficiary if the property was owned by the trust at the time of the decedent’s death. A trust can be made during the decedent’s lifetime (called an inter vivos trust) or it can be created according to the terms and conditions stated in the decedent’s will, which becomes effective upon his or her death (called a testamentary trust).
Estate Planning
What is included in an Estate?
The fair market value of the decedent’s, or deceased party’s property and interest at the time of death. This could include cash, real estate, trusts, annuities, business interest and other interests. This excludes property solely owned by a spouse or another and lifetime gifts, depending on their stage of completion.
*The property included in an estate does not necessarily equal the value used to evaluate estate tax.
Why are wills important?
No one wants to contemplate the possibility of his/her death. Should something happen to you, how will your assets be disposed? Without a current will, the court will decide what is to become of your assets according to what they feel, is best. Having a will allows you to control the distribution of your assets in the event of your death and eliminates potential arguments and hardships amongst your beneficiaries.
What are the components of a valid will?
To be valid, a will must be in written, typed or printed form, signed with your signature at the end of the document and witnessed by at least two others present at the time of your signing. If a will does not comply with these requirements, the court has discretion to grant, or not grant, probate, which could potentially invalidate your final wishes. It is important to meet with an attorney who specializes in this area.
What if I die without a will?
Dying without a will, or “intestate”, your estate is distributed to court-determined beneficiaries in accordance with the will of the court. Some typical examples of potential outcomes include:
If you die without a spouse or children, but are survived by your parents, your parents generally receive all of the assets of your estate.
If you die and are survived by a spouse, the whole of your estate will generally pass to your spouse.
If you die and are survived by a spouse and children, the estate will most likely be divided between your spouse and children, as determined by the courts. This could potentially burden your spouse who may have to sell a family home in order to pay out the shares to the children.
If you die without a spouse, children or parents, but are survived by brothers and sisters, then your estate will be divided equally amongst the siblings.
Additional reasons for having an updated will include:
protecting family owned businesses and a lifetime of assets
having a smooth transfer of assets in the event of your death
to secure your children’s future and nominate guardians (for underage children)
for those in a second marriage, a will provides the guidelines by which beneficiaries from prior and current relationships are divided – although a marriage will generally invalidate any will made prior to the date of marriage, a divorce does not automatically cancel a will.
What actions can be taken to transfer ownership of assets outside of probate?
Some process is needed to transfer legal title from the decedent’s own name to his or her Beneficiaries or heirs. Property that does not need to go through probate to transfer legal title includes property that passes automatically to someone else at the death of the decedent. Property that passes directly to others includes the following:
Real property (such as land and buildings) and personal property (such as bank accounts, vehicles, jewelry, and so on) owned as joint tenants passes to the surviving co-owners by operation of law without going through probate.
Benefits payable to named Beneficiaries, such as those from a life insurance policy or annuity bypass probate. Money from IRAs, Keoghs, and 401(k) accounts transfer automatically, outside probate, to the persons named as Beneficiaries. Bank accounts that are set up as payable-on-death accounts (POD for short) (also called an “in trust for” account or a “Totten Trust”) with a named Beneficiary also pass to that Beneficiary without probate.
Probabte Trust Law
What is Probate?
At death, your will goes through a process by which your will be determined to be your final wishes and a person or institution is appointed as administer of your estate, per your wishes. The probate consists of the gathering of assets, payment of debts and taxes of administration and distributing the assets amongst the beneficiaries in the will.
What is a Living Will?
A living will is an advanced statement regarding the preference for life sustaining procedures and treatments in the event one becomes incapacitated or terminally ill.
What is a Power of Attorney?
There are three types:
Nondurable – Takes affect immediately and remains in affect until it is revoked by the Principle or they become mentally incompetent or deceased. This is typically used for a specified purpose or transaction.
Durable – Allows one to continue to act on behalf of the Principle after they are mentally incompetent or physically incapable of making decisions. This power of attorney will remain in effect until the Principle revokes it or is deceased.
Springing – Is to be in effect at a future time in the event of disability or illness of the Principle. The power of attorney remains in effect until the Principle’s death or revocation by a court.
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