Estate Planning Law Articles
Articles written by lawyers and expert witnesses worldwide
explaining the different aspects of Estate Planning.
There is a misconception among the young and single that there is no need for them to have an estate plan - that at this point in their young lives an estate plan serves no useful purpose.
It is possible for a joint will to remain valid even after a divorce under certain circumstances. That was the decision of the OLG Frankfurt (Higher Regional Court of Frankfurt) (Az.: 20 W 520/11).
“Per Stirpes” literally means “by roots or stocks; by representation” and is used interchangeably with “right of representation” by estate planning attorneys when referring to a particular method for distributing assets of a decedent. Another common method for distributing assets is referred to as “per capita”. Using ther method, each member of the same generation of a decedent will receive an equal share of the decedent’s estate.
Many of our estate planning clients have heard about a Financial Power of Attorney but are not clear as to why they should have one or how they might benefit from having this legal document. At the outset, it is important to consider, “Who takes care of my financial interests if I become incapacitated and unable to handle my own financial affairs?”
The line of succession can be altered by means of a will or contract of inheritance. Going as far as divesting legal heirs of their compulsory portion is only possible under certain circumstances.
It is not unusual for an elderly patient to develop a close and trusting relationship with a health aid or other helper. The patient may wish to show appreciation by offering gifts. However, there are many considerations concerning this act that must be evaluated before the patient ventures to offer a gift to someone of this nature.
Around three trillion euros will be passed on in Germany between 2015 and 2024. That is the finding of a study by the Deutsches Institut für Altersvorsorge (German Institute for Retirement Provision).
In its judgment of August 19, 2015, the OLG Düsseldorf (Higher Regional Court of Düsseldorf) ruled that a will that was drawn up shortly before an operation remained valid even after the operation (Az.: I-3 Wx 191/14).
In the absence of a will, the rules of intestate succession come into force. A handwritten will is only effective, however, if it meets certain conditions.
A testamentary disposition need not necessarily be laid out in a will. The testator and heir can conclude a contract of inheritance as an alternative.
By Hackard Law
Your relative's estate plan is a mess - but your family doesn't know this yet. Planning isn't really the problem: there is no planning. And if there's no planning, then a house will pose a special challenge.
By Hackard Law
In California as elsewhere, most people are generally unwilling participants in estate disputes. There's no difference whether the dispute entails trust litigation, probate litigation or a Will Contest.
In the case of a so-called “Berliner Testament” (Berlin will), spouses can mutually appoint each other as sole heirs. However, one should also remember to clearly appoint the final heirs.
When reading the case of Dueck v. Chaplin 1, I am reminded of an article from the Globe and Mail entitled “Executors beware– it’s not an easy job.” In the article, the author notes, “You can’t help but feel honoured when you’re named an executor of the estate of a family member or friend. It’s a sign that you’re trusted and respected.
Legacy planning is a thorough, comprehensive approach to the estate planning process.
A trust is a mechanism in which one person can transfer ownership of certain properties during his or her life of after death. A trust is subject to the provisions an instructions in the trust document. However, some trust are formed based on the conduct of the parties and their intentions as opposed to the official wording of a trust document. Constructive trust are formed as a remedy to prevent unfair results.
A Florida Enhanced Life Estate Deed — also known as the “Lady Bird Deed” because President Lyndon Johnson used one to pass property to his wife, Lady Bird Johnson – is an estate planning instrument that allows a property owner to maintain control of his or her real property and avoid probate when it is time to pass the property on to heirs.
A woman felt her Mom’s power of attorney was doing such a terrible job that her Mom’s health was at risk. But that’s the middle of the story. Let’s start at the beginning.
When children grow up and start families of their own, they remain involved in their parents’ lives to varying degrees. Across Ontario, adult children are faced with choices concerning the care of their elderly parents. Some will elect to live with their parents and provide personal care.
Sometimes, people in second marriages who make wills balance two loyalties. On the one hand there are the children of the first marriage. On the other hand there is the new spouse. The road often travelled is to provide the spouse with a life interest in the estate assets. But, what does that mean? For example, who should pay the realty taxes or repairs?
The list of reasons supporting the consideration of consulting with an "Estate Planning Attorney" is long and an important consideration by those of us wanting to assure that our assets get divided and passed on to our loved ones and others in a way that reflects your wishes.
A Trust is an arrangement whereby a person known as the ‘Settlor’ transfers ownership of property to another person or persons, the 'Trustees’ for them to hold on behalf of third persons, the ‘Beneficiaries’. The assets are placed under the control of the Trustees for the benefit of the beneficiaries or for a specified purpose.
Increasing life expectancy entails a rising number of dementia-related disorders. As a result, the problem of a lack of testamentary capacity in inheritance cases is becoming more acute.
In the absence of a will or contract of inheritance, the rules of intestate succession apply following the death of the testator. This can give rise to problems with today’s blended families.
According to the OLG Karlsruhe (Higher Regional Court of Karlsruhe), if the authenticity of a will is disputed, it may be necessary for witnesses to be heard in addition to an expert assessment in order to determine whether the testamentary disposition is in fact authentic.
Trusts are often used to control children and grandchildren from the grave. Sometimes the will-maker (“Testator”) holds back the money until the beneficiary reaches a certain age. Other times the money is held back until the beneficiary graduates from college or gets married. Many a beneficiary resent the conditions attached to their inheritance and they wonder – can we “bust the trust”? Well in Ontario Canada, the answer is maybe – if you fall into the Saunders v Vautier1 rule.
When a person is adopted, the legal relationship between that individual and birth parents and other individuals is altered. In many states, adoption creates new lineage that basically substitutes a person’s natural family for his or her adoptive family. Questions regarding the rights of extended family members to children who were adopted out of the family often arise in the will and estate area of law.
It is very professional to make a valid will. People usually think it easy to make just by transcribing their intent on papers. But China law stipulates specific formats of a will which must be conformed with, otherwise it will be deemed invalid by probation court. So if you want to make a will related to estate in China, consulting with professional lawyers is strongly recommended.
Two people own a bank account in joint tenancy. In the ordinary course, when a joint tenant dies, the surviving joint tenant is entitled to the deceased’s share1. Does this situation change because it is an elderly parent and child? Maybe.
Probate is a legal process that serves a purpose, but it comes with some drawbacks.
In cases involving a spousal will or Berliner Testament (Berlin will), the tax allowances of children who are entitled to inherit can potentially be wasted. A so-called “Supervermächtnis” (super legacy) can remedy this.
Inherited properties are subject to inheritance tax. This can be a problem if the heirs do not have access to sufficient liquidity. It is possible for tax optimisation measures to be used.
As more and more Chinese emigrate overseas, cross-border inheritance happens more often than usual. But we find that a lot of people ignore their right to estate from theri relatives just because they lack knowledge of inheritance law in China. Sometimes the value of estate reach to the amount of millions. Hereby we introduce basic rules of inheritance in China.
The executor of an estate has many responsibilities. This individual may have been named in the will because the decedent placed particular trust in him or her. Alternatively, the court may have appointed this individual, believing that he or she could fulfill the duties the job entails.
Revoking a joint will (Berliner Testament) enables it to be rescinded. For this to happen, the spouse needs to have received effective notice of the revocation.
When considering your final affairs, you may find there are things that you would like to pass to people outside of your immediate family. In fact, maybe you want to leave everything to people outside of your family. Whatever the case, you will need to know how to direct the distribution of your assets in accordance with your wishes.
Heirs can obtain an exemption from inheritance tax if they personally make use of an inherited property. According to a ruling of the Bundesfinanzhof (German Federal Fiscal Court), this also applies in the event that there is a delay in occupying the property.
Many people think that trusts are only useful for the wealthy, but this is not the case.
In cases of inheritance involving a foreign element, it is the testator’s habitual residence that determines which country’s succession laws are applicable. This is governed by the new EU regulation (Regulation No. 650/2012) concerning succession law.
Estate liabilities can be asserted when making an inheritance tax declaration, but only if the debts had already been incurred by the testator by the time of his death.
Executors and beneficiaries to a will each have rights and responsibilities as promulgated under state law. Both have important roles in the probate process and mechanisms to ensure that their rights are considered by the court.
After the massive economic and political crisis in Argentina in 2001; a period with demonstrations- clashes between demonstrators, the police causing several demonstrators death-, civil and social unrest, where Argentina had 5 presidents in a week; there was a president elected by the senate in a context of extreme economic and political emergency. In 2003 elections were called and Mr. Néstor Kirchner was elected president with 22% of the votes. There was a vacuum of power.
According to the Bundesgerichtshof’s (Federal Court of Justice) ruling of July 7, 2015, a bequest premised on renouncing an inheritance is not necessarily deemed to be a gift (X ZR 59/13).
Creating a living will can help bring peace of mind for you and your loved ones. It explains in writing what kind of medical care you want and when you want those efforts to cease during an event where you cannot speak for yourself. This can help to prevent disputes among family members, prevent unnecessary legal battles, and preserve your estate for the benefit of your beneficiaries (rather than spending it on your medical treatment).
Close relatives who are not accounted for in the testator’s will or contract of inheritance are entitled to a compulsory share. This amounts to half of the statutory share in the estate.
Receiving an inheritance can be a blessing, but there are typically tax obligations involved including the inheritance of an IRA. If you inherit an IRA, you should check with an attorney or financial advisor as soon as possible to find out what your options are.
The acceptance or rejection of an inheritance represents a declaration of intent, which can then be challenged. Deadlines need to be borne in mind when it comes to declarations of rescission.
Shares in a Cyprus company are treated as being located for legal purposes in Cyprus. Therefore, when a registered shareholder of a Cyprus company dies, her/his shares cannot be transmitted to her/his heirs until, in the case of a will, a grant of probate or, in the case of no will, grant of letters of administration has been granted from the Cyprus Court (a "Grant").
Following a ruling of the Fiscal Court of Hessen, an heir to a co-ownership share in an apartment is not spared from inheritance tax if he does not personally occupy the apartment.
Car plates are very hard to get in China. What is its value in the case of divorce and inheritance?
One’s final will can be mandated in a testamentary will or contract of inheritance. Having said that, the legislature has set limits that need to be observed if the final will is to be implemented as intended.
The passing of family heirlooms from one generation to another should be a welcome tradition in most families, but unfortunately, this process can cause long-lasting family rifts if not done properly. There are many stories of families that have split over a silver tea service or a portrait of a long-dead ancestor.
Dagg v. Cameron  is one of those cases that law school professors use to challenge the way you think.
Because wills provide the final word from a decedent, courts are hesitant to step into the decedent’s shoes and attempt to speculate on his or her intentions. However, heirs may be unhappy with the terms of a will, especially if they are given a small portion of the estate or left out of the will completely. An individual may be able to contest a will if legal cause exists to do so.
Our law values the right of the individual to decide what happens to their money after they die. It protects that right by ensuring that certain rules are followed when a person (the “Testator”) signs a Will. These rules are designed to avoid fraud. But what happens if those rules are not followed, but there is a virtual certainty that the Will in question reflects the wishes of the testator?
Whether a child has the right to inherit largely depends on whether the person who died has a valid will or not. With a will, the testator determines how he or she wants probate assets handled. Without a will, state laws of intestacy govern.
The rules of intestate succession apply in the absence of a will. This can result in the estate being distributed in a way that is different to what the testator actually wanted.
There’s no room for friendship when money’s involved. The same can be said with respect to inheritances. Disputing over the estate can divide families. For this reason, the testator ought to arrange his estate clearly.
Husbands and wives can reciprocally appoint each other as sole heirs in a so-called “Berliner Testament” (Berlin will). However, married couples must also bear in mind that unilateral changes are not possible at a later date.
Inheritance laws are determined on the state level. These laws come into effect when the person who died left no will or his or her will is invalidated due to not following legal formalities, being the product of undue influence or duress, the testator lacking the requisite capacity or for other reasons as determined under state law. Additionally, some inheritance laws take effect even if a valid will was left and if the will says something that contradicts state law.
Many financial service providers spout the advantages of a trust, promising that trusts can be used as an asset protection tool and can help your beneficiaries avoid the cost and expense of probate. However, living trusts also carry certain disadvantages with them, which should be carefully considered and weighed against the advantages.
Individuals need to take the following often-neglected but important issues into consideration when developing an estate plan or they risk depleting estate assets:
Let’s look at the Alberta case of Meier v. Rose to see how the Honourable Madam Justice J.H. Goss addressed the issue of whether lawyers who draft wills are negligent for failing to verify ownership of property?
Imagine a woman is so infuriated with her husband for his philandering, gambling and drinking that she disinherits him. Upon her demise, the husband commences an application for support under Part V of the Succession Law Reform Act (the “SLRA”). The husband qualifies as a dependant because he is a spouse and his wife had a legal obligation to support him. What impact, if any, would his past behaviour have on his entitlement to dependant’s support?
The Spanish legal system establishes three main forms of wills: holographic wills, open wills and closed wills.
The probate process is the legal process that is undertaken after a person dies. This process helps to identify the individual’s rightful ownership interests, pay off remaining debts and distribute property in accordance with the will or the laws of intestacy. This process involves several stages.
A thorough estate plan should be designed to avoid probate, save on estate taxes, appoint someone to act for you if you become disabled, and protect assets if you need to move into a nursing home.
Probate is a process in which a person’s final affairs are wrapped up, debts are paid off and any remaining assets are distributed according to the terms of a will or the laws of intestacy if there is no valid will. During this time, assets are tied up as beneficiaries impatiently await their share. Probate can also be expensive and time-consuming. For these reasons, many individuals try to avoid probate through one or more of the following ways.
The laws of intestacy are the default rules that are followed to dispose of a person’s probate estate after he or she dies. These laws are based on state statute. In order to avoid these laws, a decedent can make a will or otherwise dispose of the assets before or at death, such as through a living revocable trust or a testamentary trust.
In Canada, Depending on where You Live Parents’ Moral Obligations to Children Entitle Them to an Inheritance
British Columbia yes – Ontario maybe. Based on a case called Tataryn, British Columbia courts will, in many circumstances, ensure that disinherited children receive an inheritance unless there is a valid reason for disinheriting a person, because based on that province’s legislation each child has a moral and legally enforceable claim against the estate.
Many individuals account for their real estate, securities and tangible property as part of their estate plan. However, much of people’s lives are now online, potentially leaving a person’s digital assets unclaimed or even susceptible to theft. A comprehensive estate plan should address the handling of digital assets.
Having a will helps prevent a testator’s estate from passing through the laws of intestacy. However, if the will is not executed properly, these rules can apply if the will is considered invalid or does not completely dispose of all property under the will.
One’s final will need not necessarily be drawn up in a testament. A contract of inheritance is also a possibility. That being said, it is difficult to subsequently alter a contract of inheritance.
Those who inherit generally have to pay inheritance tax. Estate liabilities can be asserted in the context of inheritance tax. Whether something is considered to be an estate liability may be debatable.
Wills allow individuals to avoid the state’s rules about who gets what portion of a decedent’s estate. They also allow individuals to name their executors, name a guardian for their children and bequeath specific items to certain individuals. However, if a will is not properly executed, the will can be invalidated and the rules of intestacy (dying without a will) can apply.
A statement of Succession “Dichiarazione di Successione” is required whether the deceased is intestate or has, through an Italian Will, determined testamentary succession, within one year of death.
Once, expectant parents were quite concerned about marrying before a child was born in order to protect that child's claims to legitimacy. There was a time when legitimacy was a very important legal consideration, particularly when it came to inheritance rights. Today, the role of legitimacy in a child's birth rights is very different than it once was.
Inheritance tax must be reformed by mid-2016. That was a ruling of the German Federal Constitutional Court (Bundesverfassungsgericht) at the end of 2014 based on the view that company heirs presently enjoy excessive favourable treatment.
When estate planning, gifting assets to your grandchildren can do more than help your descendants get a good start in life; it can also reduce the size of your estate and the tax that will be due upon your death.
There is interplay between sections of the Family Law Act (“FLA”), and those of the Succession Law Reform Act (“SLRA”), in particular as it relates to the definition of “dependant”. That interplay may affect the second prong of the two prong test to determine who, in fact, is a dependant for the purposes of bringing a dependant’s support claim.
The European Court of Justice (ECJ) has found that Spanish inheritance and gift law unlawfully discriminates against foreigners who are living in Spain on a non-permanent basis.
Although you may be familiar with the words “Power of Attorney” you may not have a full understanding of the concept. In order to shed some more light on the subject, some basic facts about Power of Attorney are explained in this article
Is it up to you who will have custody of your children after your death? Not necessarily.
It is not unusual for a family member to be named as trustee for a trust that benefits a number of other family members. However, just because you are related to someone does not necessarily make him or her a good trustee.
If you or someone you love is planning their estate, it can be a difficult and complicated process trying to wade through all the legal rules and regulations that pertain to writing your will and related documents. Setting up wills and trusts can be especially difficult because the task is often mixed in with a variety of issues such as ill health, complicated family histories, and other emotional dilemmas, which are commonly faced toward the end of a lifetime.
The Cyprus International Trust is a powerful asset protection tool because it effectively removes the assets from a less favorable jurisdiction, and places the ownership of the assets in the Trust.
A will is the cornerstone of a complete Florida estate plan, and may be useful for anyone with assets that they wish to pass along to others, as well as parents of minor children who will need a will to name guardians for their children.
In order for a will to be valid, it must comply with certain legal formalities. There are dire consequences of a will not following these formalities, including the decedent’s estate being distributed according to the rules of intestacy and the will being completely ignored. While the legal requirements vary by state, here are some guidelines that many states have regarding the creation of a valid will.
What American doesn’t fear that they may end up in a nursing home when they become older? This not only means a great loss of personal independence, but also a tremendous financial price tag $$. Depending on location of the facility, and level of care, nursing homes cost between $40,000 and $180,000 a year; a large investment by any means.
Someone has passed away and that person's friends, family, and loved ones are left to sort out what to do with the things that are left behind. This can include both assets and liabilities. Whether a will was left or not, it is often important to understand how inheritance laws work in order to avoid disputes and keep anyone from being left with nothing but debt.
Explaining the differences between a Will-based plan and a Trust-based plan so you can make an educated decision for your family about what is best for you and, ultimately, for them.
Your IRA is protected from creditors if you have to file bankruptcy, but what happens to that IRA if you die and leave it to a child? Many assumed that the inherited IRA retained that creditor protection in a child’s bankruptcy. The United States Supreme Court ruled otherwise in Clark v. Rameker, 134 S. Ct. 2242 (2014).
The answer should be yes, but if you have had major life events in your family, such as births, adoptions, divorce, marriage, or deaths, your loved ones may be in for a surprise. If you fail timely to update your beneficiaries, or fail to provide a paper trail showing your intent to keep them the same, you may unwittingly be disinheriting a child or benefiting an ex-spouse.
When is a child a child? The Michigan Court of Appeals has ruled that it is not necessary to establish a biological relationship in order to be treated as a child for intestate succession purposes. The laws of intestate succession provide a distribution plan for the assets of people who do not have a Last Will & Testament.
Now that the ball has dropped and toasts have been made, did you make a New Year’s Resolution? While many people make resolutions, very few make it their top priority to get their estate plan in order. Even if you have an estate plan in place, situations change - babies are born, marriages are celebrated, loved ones die and divorces happen - these changes merit re-evaluating your estate plan. If you have been procrastinating about estate planning, here are some pointers to get you started.
In 2014, the rules regulating the Wisconsin Estate Recovery program were updated to allow Medicaid and other long-term care insurance programs to recover funds from recipients of such coverage after they have passed on by claiming parts of their estates.
While the majority of states require that assets be distributed in an equitable division upon divorce, community property states view all property that was accumulated during the marriage to be the equal property of both spouses.
Everyone should have a will to ensure that your assets are distributed according to your wishes. Since the purpose of a will is to make clear your final wishes, it is important to consult a professional during this process to ensure this complicated process produces a clear and concise, legal document.
Your friend calls you up one day and says that he is writing his will. He asks if you will be willing to serve as executor. What should you say? Before you answer that question, you should know about the duties you will be responsible for if you choose to act as executor. Let's discuss what you should consider.
If you own a property in Spain and you are non resident at tax purposes here, you are obliged to present and pay the Non Resident Tax Return, which must be filed and presented before the 31st of December each year.