Sharing Your Passion With The People Who Matter
April 26, 2010
What is your passion?
Do you love reading and collecting books? Are you a rabid coin or stamp collector? Do you find peace and tranquility out tending your garden?
Whatever it is that you love to do in your “off time”, you can bet the people closest to you know it. These are the people who give you that antique seed cabinet that you would never buy for yourself; it’s the person who finds the Ted Williams baseball card for a steal at an estate sale and presents it to you for your birthday; or the friend who happily goes with you to the antique car show because he knows hobbies are better when you have someone to share them with. These are the friendships that last a lifetime, the people who sometimes seem to know you better than you know yourself; and yet oddly, these friendships are often forgotten when people create their wills and divvy up their estates.
Many people go to their estate planner with their descendents and their financial assets foremost in their minds, and that is as it should be; but your estate plan can be more than a just a way to distribute property to the next generation, it can also be an opportunity to say thank you to the people who have touched your life by sharing with them the accoutrements and paraphernalia of your hobbies and passions.
You can express how much you appreciate your best chess opponent by leaving her your favorite chess board; or you can encourage the interest of your young philatelist nephew by bequeathing to him your extensive stamp collection; all you need is an estate plan which includes some kind of personal property memorandum. A personal property memorandum is not a difficult legal document to create—in fact, it will often be a very informal document—but it does require some forethought to ensure that your formal will or trust recognizes and refers to the memorandum.
Our office can help you create an estate plan that not only ensures the protection of your heirs and property, it also helps you leave a meaningful ‘thank you’ to the people who matter most.
Defining Probate
April 23, 2010
Probate: [from the Middle-English probat, from Latin probatum…] a : the action or process of proving before a competent judicial authority that a document offered for official recognition and registration as the last will and testament of a deceased person is genuine. b : the judicial determination of the validity of a will.
This Merriam-Webster definition of probate doesn’t make it sound so bad. Quite simply, it is the process by which the court determines the legal property of a person who has died, and decides to whom those assets will be distributed. It sounds like it should be simple… but somehow probate is hardly ever simple. Even in the best of circumstances there are procedures that must be followed to the letter, and the actual process (depending on the size of the estate and the laws of the state in which the property is being probated) can take anywhere from 6 months to a few years!
A good will can go a long way toward keeping the probate process on the short and easy end of the spectrum; but even with a will, much of your probate experience will depend on elements outside your realm of control. There are certain steps that must be followed to complete the probate process, including:
- the appointment of an executor or personal representative
- verification of the will
- taking an inventory of assets belonging to the deceased (which can be very difficult if good records have not been kept)
- giving notice to creditors
- paying valid claims against the estate
- preparing and paying taxes
- notifying beneficiaries (not all of whom will be easy to find)
- and eventually distributing the assets to the beneficiaries or heirs
If just reading the above takes your breath away, imagine having to actually go through all of those steps—and possibly more! The good news is that you don’t have to go through it alone, our office can help you navigate the tangled probate maze from beginning to end—from filing the first court documents to protecting your eventual inheritance—ensuring that your probate experience goes as quickly and smoothly as possible.
The Receiving End of Estate Planning
March 29, 2010
We publish a lot on this blog about preparing your estate plan: writing a will, setting up a trust, choosing beneficiaries and nominating guardians; but there is another side to estate planning, a fun side… the receiving end.
You may assume that the receiving end of estate planning is the fun and easy part, but that is not always the case. Coming into an inheritance presents its own questions and challenges; financial, logistical, and personal.
Financial
Receiving an inheritance always means you have to think about taxes. Estate taxes, income taxes, property taxes… The estate tax this year is not as clear as it has been in the past, and you will probably want to have an attorney or accountant help you with it. Whether or not you have help, you will absolutely want to keep paperwork on everything. This includes paperwork from any transfers of inherited property received by you, as well as any and all of the original paperwork you can find for the acquisition of the inherited assets.
Logistical
There is a lot more to an inheritance than simply getting money and spending it. Are you the nominated guardian of young children, holding those assets in trust for their benefit? Or perhaps you are the beneficiary of a trust, and your receipt of the assets is subject to the terms of that trust. Do you have to use the money for school? Do you need the approval of a trustee before you can spend it? Hopefully you are working with a trustee you know and trust, but if you and the trustee disagree you may need mediation or even your own attorney to assist with resolution of any dispute.
Personal
Inherited assets are often very personal and fraught with emotion. Should you really sell the house grandma lived in for decades and use the money to take a cruise? (If so, wait until after taxes, if any, are determined before you buy the tickets.) Would your parents have wanted you to use the money to pay for a wedding, or save it for your own retirement? Do you want to take the summer home that’s been in your family for generations and own it jointly with your new spouse, or keep the property on your side of the family?
Whatever you choose to do with your inheritance, it’s likely you’ll need some guidance from a knowledgeable and trustworthy professional. Your estate planning or elder law attorney can help. His or her knowledge of the probate system, estate taxes, and how to protect your newly inherited assets can be very valuable to you at the receiving end of your loved one’s estate plan.
Do You Need A Will Or A Trust?
March 14, 2010
When it comes to estate planning there are two major vehicles for the distribution of property: A will and a trust. Both are very useful tools and can accomplish specific goals—but how do you know which one is best for your family? Which document you will need depends on a number of factors, some of which may seem completely irrelevant at first: the size of your estate, your goals for that estate, the age of your children, your marital status, your retirement account, and many, many more. But the first step to understanding which tool may be right for you is to understand what each document does.
A Will: A will is a formal declaration of your wishes. It is a document you create to declare the extent of your privately held property (it does not cover jointly owned property) and what your wishes are for the distribution of that property. You name an executor to carry out your wishes, and you can even include a nomination of guardian for young children in your will. A will does not go into effect until after you die; before then it is simply a piece of paper containing your private wishes. However, once you have passed away your will no longer remains private, it now becomes a matter of public record, available to anybody who would like to view it, and overseen by the court in a sometimes lengthy and expensive process called probate.
A Trust: A trust is a far more extensive tool than a will. In fact, there are many different kinds of trusts, each of which may be used for specific situations. Most trusts created for estate planning purposes are revocable living trusts (or RLTs.) An RLT is a document created not simply to distribute your property, but to own your property on your behalf, to be invested and spent for your benefit or the benefit of your named beneficiaries. As such, a trust takes effect as soon as you sign it and your property is protected by and subjected to the trust parameters as soon as you place them in the name of your trust. There is a lot of flexibility available with a trust, and yours can be created to fit your unique situation. Most RLTs name the trust creators as the initial trustees, nominating individuals or banks to take over as trustee when the creator becomes incapacitated or passes away. The benefit of a trust is that when the creator passes away, property is not merely distributed and that’s the end of it; the creator can instruct the trustee to distribute the money slowly and in any number of ways, even to the extent of creating new trusts for each beneficiary. Trusts can last for generations, as evidenced by the enduring Kennedy trusts.
Wills and trusts are necessary tools in estate planning, each one working in unique situations. Your attorney will be able to tell you which one is best for your family.
Living in a Digital World
February 8, 2010
Do you have an e-mail account?
Do you participate in Facebook or other Social Networking sites?
Do you do any of your banking, bill paying or investing online?
If you answered yes to any of these questions then you might want to think about this next question… what will happen to all of your online assets and accounts when you die?
As we move further into the 21st century more and more of our lives are moving into the digital realm. This includes friendships, networking, business and banking. The beauty of this is that it gives us unprecedented freedom and global access; the downside is that huge portions of our lives are locked away behind password protected accounts, many of which our friends and relatives aren’t even aware of. Online accounts are incredibly convenient, but they can create huge problems if your executor or agent has no way to retrieve your online passwords, assets or contacts after you die.
Some large online service providers are developing policies to deal with the transfer of accounts upon the death of the user, as noted in this article by Alejandro Martínez-Cabrera, “but the process is rarely a simple one.” Some companies require a death certificate before they will agree to shut down an account or turn over the contents, but rarely will an online company transfer actual ownership. It could take months or years of headaches and frustration before your heirs have access to any assets or information locked behind these online protections.
What this means for estate planning is that when you talk to your attorney about your will or your trust it’s not just about physical assets anymore; digital and online accounts and assets must be part of the conversation.
The Importance of Being Earnest
January 27, 2010
Do you have a will or a trust?
Has your will or trust been reviewed or updated in the past 3-5 years?
If you answered yes to these questions then you are two steps ahead of 2/3 of the rest of Americans. But the next question is the big one:
Does your family or executor know where your legal documents are stored, and are they able to access them?
Having a will or a trust is essential, but it doesn’t do any good if nobody can find it after you’re gone. Olympic medalist Florence Griffith Joyner (“Flo-Jo”) supposedly had a will when she tragically passed away at the age of 38, but because her husband was never able to locate the original document, a neutral administrator had to be appointed by the court to execute the estate; and whether her estate was executed according to her wishes is anybody’s guess.
A will or a trust often contains sensitive and emotional information, and for that reason many people (understandably) want to keep these documents private; but spending any amount of time or money on your estate planning documents won’t help your family if they can’t locate—or don’t have access to—those documents after your death.
We suggest having an earnest conversation with your family (or one or two select members at the very least) about the existence and location of your personal documents. Although they don’t have to know what is in your will or trust, knowing where those documents are can ensure that the time and money you spent creating them isn’t wasted.
Estate Planning Lessons Learned in the Holiday Bustle
December 19, 2009
Most of us look forward to these winter holidays as a time to spend with family, enjoy the spirit of giving, and even relax a few days away from the stress of our jobs. Every year we hear about how stressful the holidays are, and yet we look forward to them anyway. Why is it that estate planning—another activity rife with benefits that admittedly comes with a little stress—is often avoided at all costs? In truth, the things we do to make our holiday planning more enjoyable and less stressful can be applied to estate planning as well:
- Don’t wait until the last minute. Not doing our shopping (or planning) ahead of time often means we won’t get what we want. The same can be true of estate planning. Some areas of planning (specifically planning for Medi-Cal, retirement, and long-term care) should begin at least a few years before you think you’ll need it.
- You can’t please everybody. Just as blended families have to come to terms with the fact that they won’t please every in-law every year, you have to accept that you may not be able to please all of your children or heirs in your estate plan. In the end, an estate plan is about your assets and your wishes.
- Planning ahead makes execution easier. Everyone knows that braving the stores at the height of the holiday season is much easier if you’ve thought ahead and already know what you’re getting. Estate planning also benefits from a little bit of forethought, and the whole process runs smoothly if you go into your attorney’s office already having made a list of assets, goals, and people you trust.
- Expect to get what you pay for. Paying $5 for the tree in the corner of the lot doesn’t mean you’ve gotten a deal; more often it means you’ve gotten a tree that will lose all its needles in the next 2 days. Don’t make the mistake of getting a “deal” on an estate plan that won’t withstand the test of time.
- Don’t forget the extras. That radio controlled car looks nice under the tree, but it’s not much fun if you’ve forgotten the batteries to make it go. Your estate plan may also require some “extras” to make it work: funding, memorandum of intent, letters of notification to fiduciaries, etc.
With a little planning your holidays—and your estate—can be easy and stress free. Contact our office to get started on your estate plan before the year is over.
What To Do If You Suspect Foul Play
October 27, 2009
The movies have given people certain expectations when it comes to a death in the family and probating a will; this Hollywood portrayal includes an attorney, a book-lined office, and the entire family assembled for a formal reading of the will which ends in shocked gasps as the entire fortune goes to an unknown and unlikely character. Inevitably, there is some intrigue surrounding a possible forgery of the will.
This Hollywood portrayal may be completely off base, but the basic premise is based on the very real feelings that come with the death of a loved one: helplessness, confusion, familial bonds, and sometimes even betrayal. Forged or secret wills may not be as common as the movies may have us believe, but as recent events and this article in the Wall Street Journal reveal, they aren’t completely unheard of either.
So what should you do if you suspect that the will of a loved one has been forged or tampered with? First of all, don’t try to deal with the situation alone. Dealing with the death of a loved one is stressful and emotional, and everyone—including you—is likely to be quicker than usual to react without thinking. Instead, seek the advice of a trusted third party, someone who can help you distance yourself and look at the situation objectively.
As mentioned in the article above, will forgeries are very rare, but incidents of testators (especially elderly testators) being unduly influenced are sadly not rare enough. If you suspect foul play was involved in the creation of a loved one’s will, make an appointment with an estate or probate specialist. With professional guidance, you can better work through your suspicions in a safe environment and explore your options should you feel the need to take action.
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