Estate Planning Law Articles
Articles written by lawyers and expert witnesses worldwide
explaining the different aspects of Estate Planning.
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.
Cyprus International Trusts feature essential regulatory, confidentiality and tax advantages, providing interested settlors and beneficiaries with unparalleled tax planning possibilities and an estate planning solution of impeccable quality.
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.
When a person hears the term “estate planning,” he or she often thinks about devising a will and maybe setting up a trust. For the most part, these tools focus primarily on what happens after a person passes away. However, much of creating an effective estate plan relies on having a plan in case you become incapacitated and are unable to make important decisions on your own. Two primary tools are used in this regard.
Nil Rate Band trusts were often included in British Wills made before October 2007. Now they are no longer needed for inheritance tax planning. This article contains advice about what you should do if you are the executor or beneficiary of a Will which contains a nil rate band trust
Losing someone you were close to is always difficult. But, it can be all the worse when you find that the lost loved one may have cut you out of their will, either intentionally, accidentally, or as a result of someone exerting undue influence over the person before their death. So what can you do it you get cut out of a will?
Many individuals choose to use a living revocable trust as part of their estate plan or for other purposes. Such trusts provide distinct advantages over wills or other devices.
Family Limited Partnerships can present unique challenges in divorce litigation relative to the division of property and debt. It is vital to understand the key components, their structure and various valuation methods in order to effectively represent a client where a Family Limited Partnership is part of divorce proceedings.
The rising number of marriages between Turkish citizens and foreigners brings in issues related to marriages of this type. From a legal point of view, the two important issues as regards to this may be the distribution of matrimonial property and inheritance. Under this topic we will basically address the issue of inheritance in Turkey, in line with the growing number of demands of legal assistance from our office.
Colorado child emancipation and disability cases can be complicated ones. This article addresses the basic issues with respect to state law.
When an executor or fiduciary is compensated for his or her work, this is considered taxable income. As such, there are specific requirements related to reporting this income on his or her taxes.
Buying property is one of the best ways to make an investment in Turkey whether it is for your personal use or commercial activities, bearing in mind the liberal investment climate and economical development of the country. Whatever reason you may have in mind, you must know that Turkish law enables foreign real or legal persons to own full ownership of immovables in Turkey in accordance with some restrictions.
For most, estate planning is not an enjoyable experience. For many it is a recognition of their own mortality. For others, it is simply an exercise in annoyance and frustration as one tries to navigate the complicated twists and turns of tax laws, healthcare regulations, trust laws, etc. To make things simpler, the following is a list of the top 5 things you should consider adding to your estate plan.
Reverse mortgages may not be as beneficial to seniors as one may think. Learn more about the associated risks before taking out a reverse mortgage.
Determining whether a Trust is right for you and your family can be a difficult decision. There are many factors which come into play and no estate plan is right for everyone.
When dealing with a contract dispute, particularly in the case of an oral contract, one may hear the term “statute of frauds” used. This does not refer to the commission of an actual fraud, but rather, whether the contract had to be in writing or not. So what is the statute of frauds and when does it apply?
Samantha Perelman is a 23-year-old student at Columbia University, working on a masters of business administration and as a summer production assistant on the set of the HBO show “Girls.” Impressive credentials, to be sure, but more impressive is the legal battle in which she finds herself: she is fighting with her uncle for a share in an estimated $700 million inheritance.
Inheritances have specific rules that make them different than other kinds of assets. For example, an inheritance is usually treated as separate property, even in community property estates. If family friction has begun due to friction of learning about a future inheritance, steps can be made in the estate planning process to minimize conflict. Additionally, steps can also be taken after the testator dies to help deal with family problems.
A power of attorney is a legal document that gives one person certain rights and responsibilities, the agent, over the person who had the document prepared, the principal. There are generally two different types of power of attorneys: a power of attorney for financial reasons and a power of attorney for healthcare matters. These documents are generally prepared separately, even if the same person is named as the agent in both documents.
If you have lost a loved one, there are many things on your mind, not the least of which may be what to do with the belongings that have been left behind. Sadly, family can become very attached to different items that may bear a sentimental value to them, or feel entitled to a portion of the estate's value. These problems can be greatly magnified in situations where there is no will.
Suppose that prior to the death of your spouse the two of you signed an agreement where you both committed not to sue each other’s estate. Also imagine that you did not get legal advice before signing the agreement. Would a judge hold you to that agreement? It depends.
Is it appropriate for a court order to permit an Estate Trustee During Litigation (“ETDL”) to distribute the Estate? Possibly.
Owners of real estate in Germany, who are not German citizens, may choose German inheritance law for that real estate only up to and including August 16, 2015, pursuant to German law.
Careful estate planning can sometimes prevent a will challenge – but nothing is fool proof. The purpose of this short review is to look at one arrow in the estate planner’s quiver and see how effective “forfeiture clauses” are to inoculate clients from fights over their estates. (FN1)
All states have their own inheritance laws. In succession cases involving a foreign element, the question arises as to which inheritance law is applicable. In many cases, this is a complex matter.
Challenging a prenuptial agreement in the context of estate litigation happens more often than you think.