Estate Planning Law Articles
Articles written by lawyers and expert witnesses worldwide
explaining the different aspects of Estate Planning.
A person’s Last Will and Testament may be the most important legal document that he or she ever creates. As such, it should be created after careful contemplation and consideration, while the person is of sound mind, and with the assistance of an experienced estate planning attorney.
The lingering effects of the recent economic downturn are still being felt as states continue to struggle with their Medicaid budgets. A new study released in early May from the nonprofit Kaiser Foundation reports that the number of Americans seeking healthcare through the Medicaid program increased dramatically between 2007 and 2009.
People who do not have a lot of money often dream about what they would do if they suddenly received a windfall. They think about how they would spend the money, that is and not about how they would manage it. There is a reason the old question is "What would you buy if you won the lottery," and not, "How would you manage your money if you won the lottery?"
It can be challenging to wrap your head around the possibility that a time may come when you may be in a much different mental and physical state than you are at present. Different stages of life bring certain eventualities along with them, and it is far easier to face them if you are properly prepared.
There have been precious few individuals in the history of the entertainment industry who have had the type of impact that Dick Clark had over his long and illustrious career. The professional legacy of Dick Clark will live on for generations to come, and he really laid the groundwork for the merger of music and television that is so commonplace today.
Let's say you've gone through the trouble of writing your will, readying your powers of attorney, and have developed an estate plan that meets all of your needs. What happens if you suddenly need to move into a nursing home? Will your estate plan be able to protect you and your assets from the often extreme costs associated with extended care living?
Even the best drafted estate plan in the world cannot guarantee your family will get along after you pass away. Sometimes, family fights over an estate plan are unavoidable. However, a well-crafted estate plan can lessen the possibilities of disputes and discourage challenges to your estate plan.
None of us can avoid life’s eventual certainty of death, but you can avoid substantial problems arising on death by making a Will. One of the most important things you can do for your loved ones in relation to your assets is to make a Will - and to ensure your Will is properly drawn up. You will, of course, want to ensure your money and assets pass to your chosen beneficiaries; and you will need to adequately provide for your loved ones such as your spouse and children on your death.
The Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010 is scheduled to expire, or sunset, at the end of the year. If you do not take the necessary steps to gain tax efficiency, you could be missing out on a window of opportunity and lose a great deal of money in the process.
Warning people about the possible consequences of bad estate planning is akin to warning people about the dangers of smoking -- they know it’s true, but without a real life example the point often does not hit home. Unfortunately, if the real life example turns out to be you, then your loved ones may be the ones paying the price for your bad estate planning.
An estimated one out of every five American adults, or about 50 million people, will experience arthritis at some point. Though it's commonly believed that arthritis only affects the elderly, about half of all arthritis sufferers are under the age of 65. Early arthritis warning signs are often key in developing appropriate preventative measures, so if you notice any of these arthritis red flags you should speak to your doctor as soon as possible.
Although not a new story, the story of Larry Hillblom bears repeating as an example of why estate planning is so important and why updating that plan is essential. Larry Hillblom was an eccentric multi-millionaire living on the island of Saipan. He died when his plane went down during a Micronesian island hop in 1995. As one of the founders of the international shipping giant DHL, Hillblom’s estate was valued at close to $600 million at the time of his death.
When you make a will as part of your estate plan there is a portion that is reserved for specific bequests or items that you want to give to a person. Instead of listing all of your personal property one by one in your will there is a manner that will allow you to give items away to specific people in a much easier way.
Anyone who spends any amount of time in estate planning circles knows that some of the most bitter family disputes that arise after a parent die do so because of a conflict over a family heirloom or cherished piece of personal property.
Dementia is a symptom of Alzheimer's disease, though it can also occur as a result of other medical conditions. Alzheimer's and dementia produce memory loss and a general cognitive impairment. Here are three common warning signs that Alzheimer's patients typically show. If you notice any of these in yourself or in a family member or loved one, you should consult a physician as soon as possible.
Estate planning affords you a myriad of choices and opportunities. This includes the opportunity to protect your assets so they stay in your family line. Here’s how your family can benefit from your estate planning.
Estate planning for blended families adds a layer of complexity. Each estate plan will differ based upon personal and financial goals as well as the age of and relationship with the children involved. Below are some issues to consider during the process of estate planning for blended families.
An Irrevocable Life Insurance Trust (ILIT) is a Trust used to hold your life insurance policy. Upon your death, your life insurance policy can pay into this Trust instead of directly to a beneficiary. Your ILIT Trustee will then use your Trust to pass funds out to your loved ones for a pre-determined amount of time. You must take special consideration when placing a life insurance policy into an Irrevocable Trust.
If you are the parent of young children, the last thing you want to think about is what would happen to your child if you were not there to raise them. You may in fact be thinking that it would never happen to you. Unfortunately, it happens frequently and your failure to plan could have results you never intended.
Estate planning is sometimes an uncomfortable topic of conversation when one is referring to probate law, and when speaking about probate at all you begin to refer to the estates of either those who are recently deceased or those who are unable to handle their own assets while still yet considered living.
Most people when they think of long-term care think of care in a nursing home. The majority of people only enter a nursing home when their needs can no longer be met outside of a treatment facility. Home based and community services are a range of services that allow people to remain in their homes and retain their independence for as long as possible.
India and Vance had been married for 27 years at his death. When she turned 62 she applied for widows benefits. Social Security requires as part of the application for Widows benefits that she show proof of marriage. India could not find her marriage certificate. She requested a copy from the Bureau of Vital Statistics in the state where she and Vance were married and was told they had no record of her marriage. What does she do now?
When you are planning your estate it is important to address all of the matters that are relevant to people who are entering their twilight years. While it is true that the financial aspects of estate planning are important, the health care component is key as well, and since people here in American are living longer than ever it is logical to be prepared to live into our late eighties and beyond.
It really doesn’t matter if you are divorced or married, naming someone to act as the guardian for your children is probably the most important part of your estate plan. People that are divorced naturally assume that the other parent will automatically get custody of the children if something should happen to them. This is true in most cases, but there are some situations to where it would be helpful if you have named a guardian for your children.
During incapacity planning you may use a Durable Power of Attorney for Health Care and a Durable Financial Power of Attorney to handle your personal and financial matters in the event that you become disabled. Through each of these documents, you may name an agent to make decisions for you. So, wouldn’t it be simpler to make just one document for both purposes? It might seem so, but really it is best to state these needs in separate documents.
A Medical Power of Attorney (POA) or Durable POA for Health Care is a legal document that allows you to provide a plan for your medical care when you can no longer manage decisions on your own. The basic purpose of a health care POA is to name a health care agent and list his or her duties.
Acts of generosity are beautiful things for the most part, but there is a reason to proceed with caution when you are planning your estate for the good of your loved ones. In some cases, a gift or inheritance can be detrimental, causing more problems than providing benefits to your loved ones.
When an estate has a Last Will and Testament or a Revocable Living Trust, that document will determine which heirs inherit which assets. If there is no Will or Living Trust, an estate is considered intestate. In this case, state laws will decide the rightful heirs.
You should be saving funds for your retirement each month. To determine how much to set-aside from your paycheck, calculate the total amount you will need for your later years. You can do so by estimating about 60 to 80% of your current income. This rough figure may not, however, take into account your true retirement expenses.
Estate taxes are federal taxes placed upon any estate above a certain net worth. The net worth of an estate is the value of all property and financial assets minus the total of debts that are owed.
The chance that a person will develop Alzheimer's disease increases significantly after the age of 65. Almost one out of every eight people will develop Alzheimer's disease. Though there is currently no treatment for this condition, you can look out for the common warning signs associated with Alzheimer’s. The following are a few examples:
Stieg Larsson, for those of you who can’t place the name offhand, was a Swedish journalist and right wing political activist for most of his life. He will be remembered though as the author of the novel turned blockbuster movie, The Girl with the Dragon Tattoo. As is the case with many writers, Larsson lived a modest life without acquiring a significant estate up to the time of his death.
We have all heard the warning for years now about the Social Security retirement system. Some analysts issue warnings that are dire predictions of doom while others tell us that the problem can be fixed. So do you need to be worried and if so what can you do about it?
Now that we are getting well into the year it is important to recognize the fact that there are some significant changes to the tax laws scheduled to kick in at the end of 2012. These alterations may make it necessary for you to make changes to your estate plan and perhaps your long-term financial plan as well.
Every new survey has a different percentage of Americans that do not have a Will or any other type of estate plan. The latest survey from Rocket Lawyer puts the number at 50% of Americans without a Will. If you are one of them, you should take some time to consider what will happen to your property after you pass away.
At the present time the details regarding the way that the late TV icon Dick Clark planned his estate have not yet been made public. One thing is for sure though: If Clark did not take steps to gain tax efficiency his heirs will be faced with an enormous estate tax bill.
An irrevocable trust by its nature is not one that is easily changed, which is why it's referred to as “irrevocable.” However, there are some situations in which a trustee can take action that will for all intents and purposes, change the terms of an irrevocable trust. This is known as decanting, and it involves transferring the trust property from one trust to another.
Issue 1: Making medical decisions If you and your partner have been living together for years and one of you should suddenly fall ill, the other automatically has the legal right to make health care choices on that person's behalf
None of us really like the idea of sitting down and planning for our death, yet as the old saying goes “the only things that are certain in life are death and taxes. Interestingly, the two go hand in hand in many cases. If you do not plan for your death, your estate will likely owe more taxes than had you taken the time to plan ahead.
As you are inventorying your assets in order to execute your estate plan, you may find that you have the ability to make an impact well after your passing. This may be true within your family, but your legacy may also extend beyond those that you know personally.
While the situation is getting better, the law still makes things more difficult for LGBT couples than for others. In many places an LGBT couple cannot get the legal recognition they need to properly care for each other as they get older and to leave their estate to their partner. Sometimes, it is not the law that stands in the way, but individuals who are opposed to same-sex relationships.
We have all heard how important it is to create an estate plan. Despite this, many people put off creating one. We all also know how important it is to discuss funeral plans or burial wishes without loved ones, yet many people also fail to do so. The best way for people to understand the consequences of not preparing properly is often to provide an example of what happens absent preparation. Imagine the following scenario.
Moving can be an incredibly stressful time. Even if you've planned well and the move goes without a hitch there are a lot of potential legal issues involved with your estate plan that you may need to address if you move to a new state. While moving within the same state usually doesn't require any significant changes to an estate plan, moving across state lines can sometimes be problematic.
When you create your Last Will and Testament you want to make sure the document addresses all the “big questions” about your estate such as who receives your real estate and how you divide your large assets. For the small stuff, the personal items such as your family heirlooms and photographs, you can often address this transfer by creating a personal property distribution letter. Here are three tips to help you create such a letter.
As people continue to live longer and medical science continues to make improvements, elderly people often face a range of legal topics that younger people typically do not have to deal with. Elder law attorneys are lawyers who specialize in knowing how specific areas of the law impact their clients and what people can do to protect themselves as they get older. Let’s take a look at some of the most common areas that elder law attorneys deal with.
A pet trust is a trust you create specifically to provide for the care of your pets after you die. The trust is typically created when you include specific trust creating provisions in your last will and testament though you can also create one that will take effect when you are still alive.
Even those who have no experience with estate planning issues may have heard of probate court and the probate process. Probate is simply the legal method involved in transferring property from a deceased owner to a new owner. The popular notion that probate is a bureaucratic nightmare is often overblown, though there is a kernel of truth to it.
Reason 1: Your children will need a guardian. - In the event that both you and your spouse should suddenly be killed or injured so severely that you can no longer care for your children, a guardian will need to step in to take on your parenting duties. If you do not have an estate plan in which you name your choice for guardian, it will be up to a court to make the choice for you.
According to the Alzheimer's Association, there are a variety of warning signs and symptoms that may indicate the onset of Alzheimer's disease. If you notice any of these symptoms, you should contact a doctor right away. Though many of these symptoms mimic age-related problems that almost all elderly people experience, Alzheimer’s disease symptoms are typically more significant than the common ailments associated with growing older.
Property settlement agreements are a great way for parties who are separating or divorcing to settle property issues amicably and to their mutual satisfaction. Without proper legal representation, however, these agreements can lock people into settlements that are detrimental. Following are five of the pitfalls people should avoid when working on such agreements:
Medicaid is the federal program that provides healthcare benefits to a wide variety of people including uninsured individuals with low income, pregnant women, certain children and disabled individuals, and senior citizens who need nursing home care. However, in order to receive Medicaid benefits individuals must meet financial eligibility requirements.
The prepaid funeral plan is basically a plan that allows someone to prepay for their final arrangements, as well as plan them in advance. The money is either held in trust until it is needed, or will be taken from an insurance policy. Due to the rising costs of funerals and burials, the prepaid funeral plan has become very popular in recent years.
Planning for when you may become incapacitated is critical for everyone, but especially so for gay, lesbian, bisexual, and transgendered persons as GLBT couples do not always have the same rights as heterosexual married couples under the law. It is very important for GLBT people to think through what they want to happen if they cannot take care of themselves and their finances.
Saving for a child's college education ranks right up there with paying off your mortgage and saving for retirement in terms of major money concerns. It can be especially hard for the sandwich generation--those not only having to paying for college but helping out their elderly parents.
If you are even thinking about this question, the answer is probably NOW. You need to start the process of estate planning now. Especially if you have a house and mortgage, children, and other assets, you need to start getting a plan in place.
A friend or family member has become incapacitated, physically or mentally, and cannot take care of themselves and their finances. You want to step up to help. What can you do to become their guardian? First, get an attorney to help you with the process. Have a complete understanding of the health, living conditions, and finances of the person you want to help.
One of the most common mistakes that people make with estate planning is in thinking that if they are not wealthy, they don’t need a living trust. If you consider the value of everything you own, such as you home, vehicles, bank accounts, art collection, jewelry, and life insurance, you will likely find that your estate is worth much more than what you think.
When we die, our property typically goes through probate – a process where the courts read our Will (if we have one), appoint an executor of our estate and determine how our assets should be distributed. This is known as “death probate.” Living probate works much the same way except that it occurs while we are still living.
When we’re planning for our future, we want to be sure we choose the best plans, the best programs and the best instruments for the job. But so many options can make it difficult to decide where to put your money. Do you focus on your 401(k) or go after the popular Roth IRA? Here’s a quick way to simplify your decision:
Where you keep your estate documents is important. Your documents must be kept safe from natural disasters while remaining easy for your family to find after you pass away. There are five common ways to store your estate documents safely.
Prenuptial agreements still get a bad rap. People often crack jokes when talking about them, saying they are for the paranoid, the pessimistic, and the greedy and how unromantic they are. But wanting or signing a prenup doesn't mean you are planning for divorce. In reality, they serve a very important estate planning function, particularly in second marriages. Such agreements can also be made after marriage and are called post-nuptial agreements.
If you want to leave money to a friend or family member when you die, but are worried about their financial acumen, you might want to consider establishing a spendthrift trust. A spendthrift trust protects people who may be mentally incapacitated or who may waste money by establishing a trust overseen by someone (a trustee) who controls the funds. The beneficiary cannot spend the money before getting a distribution.
If you have an employer sponsored 401k and you happen to leave your current job, you’ll probably have some decisions to make about how to handle that money going forward. In most cases if you have $1,000 or less in your 401k, you will probably get that money in the mail within a month or two after you stop working for the company.
Creating a Family Tree is a helpful method to guarantee your estate plan encompasses all your wishes for distribution of your property. A comprehensive estate plan includes a Last Will and Testament, Living Trust, Living Will and insurance policies. Depending on your personal circumstances, you may or may not need all of these documents. Each of these documents involves making specific bequests to family, friends or charitable organizations.
Adult guardianship is a legal proceeding in which a ‘ward’ is found lacking in the capacity to care for themselves and legally authorizes a guardian to make their decisions. Adult guardianship is often required when an elderly person can no longer care for themselves because of declining health, dementia, a stroke or another medical condition. Adult guardianship is a court procedure during which the ‘ward’ is found to be mentally incompetent and lacking the capacity to care for themselves.
If you’re covered by life insurance, you’re the “insured», and you’re most likely the owner of the policy, too – but not necessarily. In some situations, you might choose to have your spouse, your children, or a trust own the policy. If you’re a business owner, your company might own a life insurance policy on you and your partners to cover the value of your ownership interest in the company.
Everyone knows that long-term care is expensive, and it’s not likely to get more affordable in the near future. Figuring out how to pay for a nursing home or another form of long-term care has become a nagging concern for countless families. What happens if you have too much income or too many assets to qualify for Medicaid, but not enough savings to foot the entire bill for long-term care?
As you go through the process of planning your estate, one of the things you’ll be asked to do is to name an Executor of your Will. Many people name their spouse or child without giving much thought to what an Executor actually does – and this could be a mistake. The role of Executor is an important one, and it can involve unfamiliar and stressful duties.
Leaving an inheritance to a child is a little trickier than leaving an inheritance to an adult. After all, if you want to leave money or property to an adult, it can be as simple as saying as much in your will or revocable living trust. Children, however, can’t take control of money or property they’ve inherited – at least not until they reach adulthood. Until that time, they need someone to manage it for them.
The revocable living trust has become an indispensible estate planning tool in recent years. It gives you the ability to avoid probate. Plan for disability, and keep your personal affairs private, while at the same time offering you the flexibility to remain in full control of your assets. And, for basic estate planning purposes, a revocable living trust is an effective tool.
For example, what if your incapacity planning documents are old and don’t include the appropriate HIPAA language. In the event that you become disabled, your loved ones might have to end up going to court to get the right to make decisions on your behalf. And this is the very thing that an incapacity plan is meant to avoid.
One of the great things about a Roth IRA is that since you fund the account with after-tax dollars, amounts you withdraw from the account are usually tax-free. But not always. Here are the basic rules (keep in mind that there are separate rules for funds converted from a traditional IRA):
If you have a Revocable Living Trust, you know that it can serve as an essential incapacity planning tool. If you’re ever disabled – through illness or injury – to the point that you can no longer manage your own financial affairs, your Disability Trustee can step in and take over your trust property. However, if a Revocable Living Trust is the only estate planning tool in your incapacity plan, then there are probably gaps that need to be filled.
Not even the extremely wealthy are immune from basic estate planning mistakes. Time and time again, people name one child as a Trustee. That is a great way to make sure that your other children and heirs will dispute the administration of the Trust. A recent example concerns the estate of Lee Byung-chull who passed away in 1987. In his life, he founded Samsung.
If the deceased Florida resident has at least one child with a person other than the surviving spouse, and there is no will, the law is unchanged. Florida has made an important change in its inheritance law for surviving spouses. In the absence of a will, under current Florida law, an existing spouse of a deceased Florida resident is entitled to $60,000 plus 50% of the decedent’s estate if all the decedent’s children are also children of the existing spouse.
Procrastination is common as we all live busy lives, and time can get past you in a hurry. If you have been planning on discussing your situation with a good Central New Jersey financial planning lawyer this year you may want to take action because we are already well into 2012.
According to a news piece that is appearing on the Forbes website the late multi-Grammy award-winning pop singer Amy Winehouse died intestate. The article cites probate records as the source of this information. This is indeed news because it flies in the face of earlier reports. The tabloids from across the drink published stories shortly after the death of the mercurial diva praising her stalwart estate planning efforts.
Everyone has heard of Alzheimer's disease, a debilitating condition that causes dementia among our nation's senior citizens. People who suffer from dementia can find it difficult to understand certain concepts, and as a result they can find it impossible to make sound decisions for themselves.
Not just anyone may challenge the validity of a Will. Though state laws differ slightly, all require that you be related to the Will in some manner. Typically, you must be able to show that you would have received more from the decedent, if he or she had died without a Will; or if he or she wrote an earlier Will that left you more than the current Will.
Reason 1: Your children will need a guardian if you should die. Becoming a parent changes you, especially when you realize that your children are entirely dependent on you. With this realization also comes the knowledge that if you and the other parent should die, your children will have to be cared for by someone else. But who will take on this role?
It would be logical to assume that you can leave behind financial resources to your loved ones without losing money in the process. However if you do not plan your estate carefully your legacy may well be eroded as it is being passed on to your heirs. One source of asset erosion is probate.
There are a number of things about the Federal estate tax that do not seem fair to many observers. One of them is the fact that it is a tax that is imposed on resources that are still in your possession after you paid taxes. They are not subject to more taxes by virtue of their very existence while you are alive. But the event of your death is somehow viewed as a taxable one by the powers that be.
Every family dynamic is unique and the level of communication that exists among family members is going to vary on a case-by-case basis. Some families have very frank and open lines of communication and this can be helpful when you are considering the implications of the aging of a family member.
You may hear about payable on death accounts and walk away thinking that these accounts are an ideal estate planning solution. After all, simply adding a beneficiary who would assume ownership of resources left in the account after you die is a pretty efficient solution.
Mark Zuckerberg and Dustin Moskovitz are two young men who are in possession of some extraordinary wealth. The Facebook founders are in a position where they have to look for ways to preserve considerable financial resources beyond their own lives. There can be significant tax consequences that go along with gift giving and asset transfers after death, so careful planning is key.
Far too many people go through life without executing the appropriate estate planning documents. The reasons why they procrastinate vary but one reason is the misconception that it is a very simple matter that can be handled at any given time. You simply jot down your final wishes, call it a last will, and the matter is closed.
The probate process governs what happens to all the property a person owned after that person dies. Each county usually has a probate court that is set up to deal with these property questions. Though each state and even each county, has a slightly different procedure for probate cases, all of them require the same basic process. To begin, someone has to go before the court and file a petition.
Probate law is often one of the more misunderstood, and even feared, areas of the legal system. Not to worry. The probate process itself is based on some very simple ideas. Let’s take a look at how a case begins.
Whether you are a newly married couple, a couple with young children, or a blended family with children from a previous relationship it's important for you to begin your estate planning efforts immediately. While many people believe that estate plans are only for the elderly, parents with young children are in a much greater need to develop a plan because the children rely on you so much. Here are two key parts to your estate plan you need to address soon.
Millions of Americans have not taken the time to sit down and create a comprehensive estate plan. In addition, a shocking number of Americans have also not sat down and discussed their funeral and/or burial wishes with loved ones. If you are one of those people, stop and consider the consequences of not doing these things now, before it’s too late.
As part of your legacy planning efforts, you may wish to consider digital tombstones. What are digital tombstones? Essentially they are websites that allow you to assemble your personal information in one place, so your family and friends can visit it when they wish. If you're considering using such a service, there are several issues you will want to consider.
Answer: Maybe. In order to challenge a Will you must have “standing,” the legal right to challenge a will in court. In order to have standing you must typically have stood to receive more from the deceased person either through a previous Will or if that person had died without leaving any Will at all. Essentially, in order to have standing you must stand to receive more if you win the Will challenge and a court declares the Will invalid.
People like to do things for themselves. We all think that we know what we need to do and what is in our best interests. However, if you try to make your own estate plan instead of seeking the advice of an experienced attorney, you are likely to make some serious mistakes.
According to recent survey data, less than half of Americans 18 and older are married. For unmarried or cohabiting couples, estate planning is significantly different than it is for married couples. Whether you've been living together for years and have no intention of getting married, or simply want to take precautions in case the unthinkable should happen, here are three tips you can use if you are a cohabitating couple with concerns about estate planning.
If you've experienced the death of a close family member, you may have to soon confront the prospect of beginning the probate process. Though the process is slightly different depending on where you live, beginning a probate case involves several key steps and requirements.
For any adult child who is facing the decision whether or not to petition to become his parent’s legal guardian, feelings of conflict are normal. Being appointed as your parent’s guardian is the ultimate in role reversal. Many adult children feel as though seeking guardianship means taking away your parent’s independence. Concerns that you may be over-reacting are also common.
Creating a comprehensive estate plan is a complicated undertaking and requires a thorough understanding of all the myriad tax laws that will impact your plan. This can be difficult under normal circumstances. In an election year, it becomes increasingly difficult as the fate of many tax laws is uncertain. This is not, however, the time to become complacent. Doing nothing could cost you a substantial amount in taxes.
In recent years, the rate at which technology has developed is mind boggling. Just a generation ago, the internet was virtually non-existent. Today almost anything can be located and viewed on the internet, giving rise to privacy concerns for many people. Are your estate documents public information?
If you recently received a letter or a telephone call telling you that you just inherited a small fortune from a long lost relative you probably feel as though you just hit the lottery. The next thought is likely “What do I do with the money? If you are already financially secure, then you can probably answer that question yourself.
We all hope never to need to know the answer to that question; however, if you do find yourself in the position of trying to figure out what practical steps need to be taken after the death of a loved one. It is good to know where to start. Often, the emotional impact of a death prevents us from thinking clearly. While each death may require unique steps, there are some universal steps that most people find must be taken.