Estate Planning Law Articles
Articles written by attorneys and experts worldwide
discussing legal aspects related to Estate Planning.
San Jose estate planning attorneys invariably speak to many clients who feel as though the estate tax is fundamentally unfair. Their clients register multiple complaints, but the primary reason that they cite is the fact that the estate tax is an instance of double taxation.
We will start out by discussing the rules of eligibility for certain types of assistance programs. Next, we will discuss problems and pitfalls in planning for a Special Needs loved one. This will evolve into a discussion about what are believed to be the best options of planning for special loved ones - the Supplemental Needs Trust.
No matter what the financial status of an individual is estate planning can be an important aspect to safeguard assets. While Whitney Houston has made millions over her career, even she became susceptible to a lack of financial planning that can have an influence for years to come. Estate planning is an important thing to consider in today’s world.
Beginning the estate planning process usually requires you to set up a meeting with your estate planning lawyer so you can get down to the concrete steps involved. To make this meeting go easier, there are several items you can bring with you. Always talk to your lawyer or his or her personal assistant before you come to any meeting so you know what to expect and what you should bring.
Oral wills were traditionally used when a person was too sick or otherwise unable to write. Question 1: What is a nuncapative will? - Answer: A nuncapative will is simply a fancy way to say oral or verbal will. With an oral will, the testator—the person who makes the will—states his or her wishes verbally instead of writing them down.
When you sit down to evaluate your legacy, you may need to do some serious soul-searching. In the field of estate planning. you generally stick to the pragmatic financial realities, but when you are preparing to “meet your maker” as it were, a lot of things may enter your mind.
Over the course of your lifetime it is likely that you will have accumulated some considerable financial resources. Given the fact that it took you many decades to get to where you are arranging for the transfer of these assets after you pass away is not something that can be done by a layperson in the blink of an eye.
The high and rising costs associated with long-term care are something to take very seriously when you are making preparations for the latter portion of your life. If you combine the typical length of stay with the average cost of nursing home care you could be looking at an expense that exceeds a quarter of a million dollars. This is an amount that a lot of people would find difficult to pay without seeing a significant portion of their legacies going down the drain.
While everyone in Washington who is a competent adult can create his or her own last will, State law also allows some people to create an oral will in limited situations. These wills, known as nuncupative wills in the State statutes, can only be used in a very limited set of circumstances, and you should not rely on the oral will provisions to create your last will and testament.
In most states, to create a valid Will, you must sign your Will in front of two witnesses. Your witnesses must also sign your document in your presence. Typically, your witnesses should be impartial and have no monetary motivation for witnessing your Will. In many states, your local probate court will require the testimony of one or both of your witnesses when someone tries to probate your Will or admit it for filing.
No one wants their family members to fight in court over their assets after they pass away. Probate battles can be long, costly, and nasty. The damage to familial relationships is often never undone. The keys to avoiding a probate battle between your family members are proper estate planning and communication of your plans.
Estate planning often encompasses numerous different tools and strategies. While your Last Will and Testament may be the cornerstone of your estate plan, you will likely wish to use other tools as well such as a trust. Trusts can be beneficial for a number of reasons such as avoidance of probate or estate taxes or retaining some degree of control over the trust assets long after death.
Flipping a house is a practice that has been done by many. While it can be done effectively, providing those who take the time to do it fast and beneficial rewards, it can also be done illegally in some cases, crossing legal guidelines that are imposed by the government.
There are two basic reasons why estate planning is so important. First, estate planning allows you to decide what will happen to your assets upon your death. Second, by planning ahead, you can substantially decrease the tax consequences of transferring your estate assets to family members or loved ones. In the absence of planning, your estate assets may be subject to either estate or gift taxes, both of which can significantly drain estate assets.
You have choices when planning your estate. You are not required to utilize a last will to direct the distribution of your assets after your death. Instruments such as revocable living trusts are viable options and they are not exclusively for the wealthy.
These days you see various entities offering blank generic legal forms. They would like you to believe that anyone can plan his or her own estate. All you have to do is purchase one of these forms and fill in the blanks. You then have an ironclad estate plan in place and you have no need for any further action.
Military service is demanding on many different levels and it is not something that everyone is going to be suited for. Without question there are a lot of sacrifices that go along with serving your country but at the same time there are some rewards to be had, especially if you serve for a significant period of time.
After much debate, the Washington Legislature finally passed the Washington State Death with Dignity Act in 2008. The law allows certain physicians to prescribe lethal doses of medication to terminally ill patients. Terminally ill patients, according to the Washington State Death with Dignity Act, are those with six months or less remaining to live, who reside in Washington, and who are at least 18 years old.
When a married couple consists of two U.S. citizens, the estate planning rules treat them differently than if one spouse is a non-U.S. citizen or if both spouses are non-U.S. citizens. Although the differences may only affect the postponement of Federal estate taxes, the marital deduction set forth in the Internal Revenue Code may affect your estate plans.
Tip 1: Consider the children. When people with children from a previous relationship get married the new spouses automatically become entitled to a portion of the other's estate. This can impact how much the children stand to recover. You can use a prenuptial agreement to waive your right to inherit from your spouse and ensure your children aren't left out in the cold.
A nurse in Australia recently wrote a book detailing her experiences in dealing with the dying and coming to understand what they regretted the most. Though it can be hard to contemplate such thoughts, we can all benefit by learning from those who have faced their own mortality and understanding what it is they regretted so we might be able to avoid such regrets when our own time comes.
A lengthy probate battle can drain estate assets and leave beneficiaries without access to them until the matter is settled by the court. Although you may be under the impression that probate litigation is only for the rich and famous, rest assured it is not. In addition, you may be counting on the fact that you won’t be around to worry about it in the event a probate battle does come to pass.
Answer: Though prenuptial agreements are available to any couple, those entering into a second marriage or who already have children, stand to benefit the most by making sure a good prenup is part of their estate plan. Once you get married in Arkansas, you are automatically entitled to a portion of your spouse's estate when he or she dies.
If you’re creating an estate plan and want to leave your home to your family, there are a wide variety of options that allow you to do this. Each comes with its own benefits and drawbacks, and each state may have different laws that impact the transfers. Always talk to your estate planning attorney for detailed advice before you decide on any particular method.
When a beneficiary who stands to receive a gift under a Will dies before the testator dies, the gift has no one to go to. This is called lapse. When this happens, that gift passes according either to the terms of the Will or to your state's intestacy laws and not to the deceased beneficiary's descendants.
Whenever someone establishes or creates a Trust, the Trust property must be managed and looked after through a process known as Trust Administration. Depending on the kind of Trust involved, Trust Administration can be fairly simple or extremely complicated.
For anyone with a substantial estate, the never-ending search for mechanisms to transfer those estate assets without incurring estate taxes should include the use of both the gift tax exemption and the yearly gift tax exclusion. With estate taxes typically running at 35 percent or more, any tactic that can be employed in the estate planning arsenal to avoid the payment of estate taxes should be considered.
Most of us listen to the never-ending stories about money disputes in Hollywood and shrug them off as having no relevance to our lives. While most don’t, there are some lessons to be learned from some of the infamous Hollywood money disputes that make the headlines on a regular basis. Take, for example, the recent death of music legend Etta James. The last year of James’ life can be an example for all of us about the importance of estate planning.
After you pass away, the transfer of assets to your loved ones may seem like a relatively simple and straightforward task. It should be but the realities of the tax code can make it rather challenging to avoid a significant portion of your legacy being consumed by the IRS.
If you are serious about being prepared for all of the eventualities of aging, you need to understand the fact that the majority of senior citizens will need living assistance someday. Given this reality, proceeding with the notion that it is unlikely that you will ever need such care is tantamount to a wager against the odds.
If you are expecting to retire in relative comfort you are going to have to acknowledge that this is a goal that will take effort to reach rather than viewing it as an entitlement. With the above having been stated, statistics tell us that a very high percentage of people are unprepared for retirement.
The Personal Income Tax (Amendment) Act 2011 has among other things consolidated all the personal income tax reliefs or allowances into one consolidated tax allowance/relief of 21% of an individual's gross annual income. The residue of a person's income is then liable to a graduating personal income tax charge of between 7% to 24% per annum. The rules concerning expatriate income earned from businesses in Nigeria has also changed.
Many people equate the process of estate planning with the act of drawing up a last will. You may go this route if you choose to, but it is important to recognize that the probate court will be involved. While the estate is hung up in probate, interested parties who may have business with the estate will have an opportunity to seek payment.
The unfortunate truth is that a significant percentage of Americans do not plan ahead diligently with retirement in mind and they wind up being overly dependent on Social Security. The Social Security Administration states that in excess of 60% of Social Security recipients rely on their benefits as their primary income source. This can be a problem because the average monthly benefit is less than $1,100.
If you have a dependent in the home, you have to make sure that you have made provisions with regard to a guardian should this child be left on his or her own. This is one of the reasons why estate planning is as important for younger adults as it is for senior citizens.
For parties with assets and or beneficiaries in multiple jurisdictions it is imperative to ensure a proper estate plan is in place. Unless proper steps were taken in estate planning there could be adverse tax consequences that could have otherwise been planned for and perhaps avoided to achieve the testator’s goals. This article examines the consequences of failing to make such a plan where the deceased resided in both Israel and Canada with beneficiaries and assets in both jurisdictions.
Long-term care is extremely expensive and the fact is that Medicare does not pay for it. So, if you truly want to be prepared for all the eventualities of aging you are going to have to be proactive about addressing these potential expenses.
Famous celebrities continue making national celebrity news headlines posthumously when their heirs challenge their last will and testaments. For example, consider Anna Nicole Smith. Her heirs have spent millions in legal fees challenging her will.
State laws vary as to when custodians must file a decedent’s Will with their local probate courts. Most states allow testators or Will drafters to file their Wills with their local probate courts before they die. This way, Will drafters can avoid potential confusion as to where they stored their Wills.
Generally, Florida courts will uphold nuptial agreements if entered into and signed properly. This extends to both prenuptial (before marriage) and postnuptial (after marriage) agreements unless one party can prove there was no full disclosure of financial assets or that he or she signed it under duress, fraud or mistake. In the absence of extenuating circumstances, courts will uphold them. Courts will also allow spouses to waive their inheritance rights through nuptial agreements.
You may think that arranging for the transfer of assets to your loved ones after you pass away is something that should be easily done without incurring a lot of expenses. Unfortunately, there can be costs involved, and probate expenses would be among them.
If you were to ask the typical person walking down the street he or she would probably tell you that a certain amount of taxation is necessary. Most Americans don't mind paying their fair share of taxes. The problem arises when you feel as though you're being taxed unfairly or taxed twice on the same resources. When you look at the federal estate tax closely you see that it is in fact an instance of double taxation and this rubs a lot of people the wrong way.
A home equity conversion mortgage is a reverse mortgage that is supported by the federal government. As the name implies with a reverse mortgage a homeowner receive payments from a lender rather than making them. In return, the lender in essence purchases equity in the borrower's home.
Estate planning can involve a good bit of soul-searching, and when you are making plans for the future you may feel the urge to engage in acts of generosity. Some people who have considerable means will create private family foundations and this is an option that is available to you.
In the past gay marriages were not legal anywhere so people who were involved in long-term same-sex relationships had absolutely no protections under the law in terms of succession. As a result, executing the appropriate Estate Planning documents was absolutely essential. The phenomenon of legally recognized marriages between individuals of the same sex is a relatively recent one.
Even without litigation, an estate with only moderate assets can take twelve to eighteen months to clear probate and can incur a sizable sum in legal fees associated with the process. An estate that ends up in litigation can take years to resolve and may incur a staggering sum in legal fees in the process.
In the field of financial planning, a HECM is a home equity conversion mortgage. These are reverse mortgages that are supported by the federal government. These loans are totally legitimate, and in fact you must complete an informational session that is approved by the United States Department of Housing and Urban Development before you can close on such a loan.
A lot of people are interested in diverting resources to charity when they are devising a long-term financial plan. Indeed, charitable giving is its own reward but there are also tax advantages that can be realized through acts of generosity. Weaving your philanthropic intentions into your estate plan in an efficient manner is key.
The Indiana Trust Code gives each Trustee a legal right to receive monetary compensation for his/her work administering the Trust. absent language within the Trust document prohibiting compensation. Indiana Trust Code Sections 30-4-15-1-17 and 18 set forth their rights to compensation.
As part of the Federal Economic Growth and Tax Relief Reconciliation Act of 2001, Congress temporarily eliminated estate taxes for the year 2010 only. However, they returned in 2011. Currently, estates worth over $5.12 million owe federal estate taxes. In some states, these large estates owe state death taxes, too.
In Indiana, joint tenants can own real property jointly as tenants in common or as joint tenants with right of survivorship. Residents can also own certain personal property jointly as tenants in common or as joint tenants with right of survivorship. For example, two individuals can own their bank account jointly as joint tenants with survivorship rights or as tenants in common.
Pursuant to the Indiana Law, surviving spouses have legal rights to renounce their inheritances in favor of their statutory elective shares. Based on the Uniform Probate Code, the Indiana Law contains an elective share allowance whereby one spouse cannot entirely disinherit the other in the absence of a valid nuptial or marital agreement.
People creating an estate plan often wonder about how funeral expenses will be paid, and may turn to prepaid funeral plans as one option. If you're considering a pre-paid funeral plan, you should first educate yourself about how they work and what they offer. There are two basic types of these plans: guaranteed and non-guaranteed.
In the state of Indiana, each adult citizen has the right to make his or her own decisions about the kind of medical care provided by health care workers. Your physician's job is to properly inform you about your options and to provide you advice on what to do, but in the end, it is up to you to make the final decision. But what happens when you are no longer able to make your decisions for yourself, or you lose the ability to express your desires?
Some of the financial planning instruments that are routinely utilized can be a mouthful to say and can also be a little bit difficult to understand. On the other hand, there are some that are pretty self-explanatory and reverse mortgages would fit this category.
A lot of people want to satisfy certain philanthropic urges that they have when they are making preparations for the future. We have all heard of famous private family foundations started by high profile wealthy individuals. Though it might be nice to make such a foundation part of your legacy, the costs associated with creating and maintaining a foundation dissuade many people from going this route. A popular alternative would be to contribute money into a donor advised fund.
Paying spousal support to your former spouse after marriage can be an emotionally and financially painful experience. And if a divorce is imminent, she will come at you asking for the kitchen sink. Below are some tactics and techniques that you can use to reduce alimony payments in your divorce case.
Once a person dies leaving behind property, someone has to take on the responsibility to manage that property and then transfer it to new owners. This person, known as an administrator or an executor, has a special duty to protect the estate property and to see the decedent's wishes are followed.
Section 11.118 of the Revised Code of Washington, governs pet trusts. Pursuant to this code section Washington State law allows individuals to set up trusts for the care of their pets. Animal or pet trusts are similar to trusts for children. You must appoint a competent adult to take care of your animal, just as you would for a child.
In a few states, including Texas and Kansas, adopted children can inherit from their biological parents through state intestacy laws in the absence of a Will but parents cannot inherit from the children they gave up through adoption if the child does include them in their will.
Many people decide that they would like to provide for charitable organizations when they are making long-term financial plans. This can be personally rewarding of course, and there are often tax benefits to be gained through philanthropic efforts.
Some thoughts about the problems small business owners face when choosing a business entity. Among other factors limiting the liability of the business owner must be carefully considered. It is important to remember that simply choosing to do business in an entity - corporation or limited liability company- is not enough to eliminate all the liability the small business owner has.
Benjamin Franklin famously declared that “in this world nothing is certain but death and taxes”. Estate planning is a sensitive issue, which many people are reluctant to address, but considering that the plans and documents you make concerning your death are likely to be some of the most important financial documents you will ever make, inheritance is a crucial legal issue which everyone must consider.
You gain a sense of satisfaction from acts of generosity that really cannot be adequately described in words. Being in a position to help others can be extremely rewarding, and even if you are giving in a totally selfless manner, there could be tax advantages realized through acts of giving.
Hollywood is always good for a great story about a money dispute involving someone famous. Actors, producers, authors, and agents are forever arguing about who gets how much of the millions they make each year. These stories rarely have any bearing to the average American’s life. Occasionally, however, a Hollywood story actually does hit home with the average American, as in the case of the recent death of legendary R&B, jazz, and blues singer Etta James.
An overview on the foundation structure, with a particular focus on Private Interest Foundations in Panama. There are many countries offering legal entities known as offshore foundations. A private offshore foundation is a private entity usually set by an individual or married couple to provide for their children and their heirs.
Many people are surprised when they hear just how expensive long-term care has become these days. If you look at the average length of stay which is between two and four years, coupled with the average costs you may be faced with an expense that exceeds $200,000 toward the end of your life.
Transferring assets to your loved ones is the objective when you are planning your estate, and it is important to understand the fact that you have multiple options to this end. You may automatically think that you will be using a last Will to express your wishes, but when you look into the details you may find that this is not the best choice for you.
If your estate is valued above a certain amount, your heirs will be faced with the prospect of paying the federal estate tax. At the present time the estate tax exclusion is $5,120,000 and the rate of the tax is 35%. So the portion of your estate that exceeds the exclusion amount is subject to the 35% tax.
Estate planning has truly become an art form. Along with deciding who will receive what when you die you must attempt to create a plan that limits or avoids estate taxes and the often lengthy probate process. For those with an estate of considerable value, an irrevocable life insurance trust, or ILIT, is an estate planning tool worthy of consideration.
In the never-ending quest to pass down assets without paying the often exorbitant estate taxes due on estate assets, a grantor retained annuity trust or GRAT, can be an attractive option. Although a GRAT has very specific rules that must be adhered to in order to benefit from the trust, the benefits can be substantial.
Most people are accustomed to taking into account the tax ramifications of purchases expenses and investments as they apply to personal income taxes; however, estate taxes can potentially have an even bigger impact, yet are often forgotten.
1. Transferring to a Spouse: Married couples often own property as equal owners with a joint tenancy. Each owner in a joint tenancy may have the right of survivorship, which is the right to automatically inherit the ownership rights of his or her spouse upon that spouse's death.
If you die in Texas without leaving behind a valid last will and testament, all your property goes to owners that are pre-determined under Texas law. These laws, called intestate succession laws, give your property to those related to you. The only way to change these laws from applying to your estate is by creating a valid will and making your choices yourself.
Picture this: you find out you need heart surgery, and you bypass the board certified heart specialist in favor of your family practitioner, just to save some money. It’s a ridiculous idea, isn’t it? And yet, when the issue is estate planning, people are quick to make a similar decision. All too often, clients entrust the future security and well-being of their families to lawyers who just aren’t equipped to do the type of detailed, careful planning that is necessary.
Every parent should consider estate planning as important, but it is extremely important if you have a special needs child. When a parent has an estate plan, they are given a chance to decide who will raise their minor children, and how best to set money aside for those children so that they can be cared for if the parent is no longer there to provide for them.
With the rising cost of long-term care in our elderly years, it makes sense to look for a good long term care insurance policy early on. However there are so many different kinds of policies available that it can be very difficult to compare apples to apples. Here are some tips to make sure that you are choosing the correct company for your insurance needs.
Creating a durable power of attorney for health care is an important part of the estate planning process. After all, you want to make sure that the right person is in charge of your medical care in the event that you become incapacitated. Not having a durable power of attorney for healthcare can cause a variety of different issues between family members who have to make important and difficult decisions on your behalf.
Planning for your care in your older years is critically important. The unfortunate fact is that so many seniors find themselves in a very bad situation in their later years because they did not create a plan that would protect their interests later in life.
It can be a real dilemma: on the one hand, you want to pass on the wealth you’ve worked hard to earn but on the other hand, you don’t want a large inheritance to dull your children’s work ethic, or leave them with a sense of entitlement. One possible solution to this dilemma is the incentive trust.
Times are tough, and credit is still in limited supply. A sign of this is a recent statistic quoted by the Wall Street Journal: 30% of 401(k) savers have an outstanding loan against their retirement plan.
Part of creating your estate plan should include executing a healthcare power of attorney document. This tool allows you to have some control over your medical care, if you’re ever incapacitated. The health care power of attorney is important if you want to make sure that you’re receiving the best care possible and that someone is making good decisions on your behalf. Take a look at some of the information below, to better understand the use of the document.
Renouncing a will means giving up your inheritance as provided in the will of a deceased. But why would anyone want to give up their inheritance? Renunciation may be a tactic used by a spouse who would choose to take a share of an estate as specifically provided by state law, rather than a smaller portion of the estate that may be provided for in the will.
Unlike cash or real estate that can be divided neatly into shares, tangible personal property, including jewelry, furniture and family heirlooms, can pose a challenge when creating a Will.
Avoiding probate requires thoughtful planning. Creating a Living Trust through an experienced Estate Planning attorney is an important tool in ensuring your assets are distributed in accordance with your wishes and without much of the hassle associated with probate. But there are a number of other tools available to help keep your assets away from the probate court.
Your Last Will and Testament is the a starting point for your entire Grafton estate plan. For this reason, your Will should be well thought out and updated on a regular basis. While there are some precipitating events that commonly prompt most people to make a change in their Will, there are some other reasons that may also warrant an update that are frequently overlooked.
Hollywood is never short on sensational accounts of legal disputes over money. Often, these disputes are over million dollar deals for recording contracts or movie scripts of publishing rights topics that have little relevance to the average American’s life. Sometimes, though, Hollywood money disputes can be relevant and actually teach us something.
Estate planning can be complicated, even for a relatively small estate. If you are fortunate enough to have a sizable estate, estate planning becomes even more complicated, yet takes on a heightened importance as well. Along with deciding who will receive your assets upon death, you must take into consideration things such as avoidance of estate taxes and limiting the assets that will be part of the probate process.
If you have spent a lifetime building up your estate, then you likely don’t want to lose half of it to estate taxes upon your death. Unfortunately, without careful estate planning, that can happen. Although each estate is entitled to an exemption amount which is subject to change, any estate assets above the exemption amount will be subject to the typically high rate of estate taxes.
Trusts are an integral part of estate planning and trusts only work when trustees carry out trust instructions. To that end, we’re answering your trustee questions here. If you have additional questions or need help choosing a trustee, ask your estate planning attorney.
A loved one with dementia has special needs that should be taken into consideration, especially when choosing a long term care facility. It’s important to take extra care so that your loved one is able to live a comfortable and safe life. There are steps that you can take to make sure that you’re choosing the best possible facility for your loved one. We discuss those steps below.
Think about your online life. Many of us bank online, communicate online, conduct business online, socialize online, and market our businesses online. Keep a notebook next to your computer for one month. Each time you access an account or digital asset site, jot down the account number, web address, password, user ID, and PIN. Then, organize the list so your loved ones will be able to handle your digital assets if you become incapacitated or die.
If you’re like most people, you’ve heard the term, “probate, «but aren’t really sure what it means other than it happens when someone dies and lawyers are involved. To bring some clarity to the subject of probate, we’re answering common probate questions below:
Managing a trust is an extremely important responsibility. For the trustee, it is crucial to become well informed of their rights and responsibilities in order to avoid any legal conflict in the future. It is not uncommon for people to be confused about what exactly a trust is and what its functions are. A trust refers to property given to a trustee to manage for the benefit of a third person.
Many people assume that an estate plan is a relatively easy tool that can be completed in a matter of minutes by downloading documents from the internet. This is why many people attempt to do their own planning. It’s important to understand how beneficial a custom plan can be for you and your life and how worthless a generic is.
When creating a will, it’s important to take extra care to ensure that you have a legal and valid will. This can allow your wishes to be respected and can help to keep a will contest, or challenge of a will, at bay. Are you wondering what may warrant a will contest? Take a look below, to learn more.
If you’re like many people, you may have the desire to avoid the probate process. Because it can be a public, lengthy, and expensive process, many people plan their estate in hopes to avoid it. There are reasons why probate is necessary in some cases. Take a look at the reasons below to see how probate can be helpful. If you have any questions, or if you’d like to discuss the probate process, contact an estate planning – probate attorney.
A pour-over-will is the will that is used in trust based estate planning. It has three important functions. The pour-over function funnels any assets not funded into your revocable living trust at your death, into the trust, through the probate process. In addition, you appoint your personal representative (i.e. executor) and guardians for your minor children in your pour-over-will.
Unintended heirs are those people who end up with your money, without you intending to give it to them. Often the government, your surviving spouse’s new significant other, or an estranged relative are unintended heirs. Unfortunately, children are unintentionally disinherited with poor estate planning and inappropriate asset ownership. Instead the assets go to unintended heirs. Every adult needs a comprehensive up-to-date estate plan that is customized for his or her individual situation.
If child custody and/or visitation arrangements have not worked out, the non- custodial parent can bring an application to either the Family Court or Supreme Court to modify the child custody arrangements (if the parties have remarried). Men often do poorly when dealing with the Family Court or the Supreme Court in child custody and visitation matters.