If you do not have a Will or Trust and die with an estate to administer, your estate will go through Probate and your assets will pass in accordance with the intestacy law of the State.
Yes. However, Wills contain legal language that may be confusing or hard to understand. In order for a Will be to valid it must be executed properly and the execution requirements are different for Wills and Trusts. We recommend having an Estate Planning Attorney draft these important documents.
▶ My husband does not want to prepare a Will. We have minor children. What will happen to my children if we don’t have a Will in place?
If neither of you execute a Will and you and your spouse die leaving young children behind, the Court will appoint a legal guardian. This can cause family feuding, be expensive and stressful. If your husband does not prepare a Will, but you prepare a Will and in it nominate a guardian for your children, and later you both die, the Court will take into consideration your recommendation and in most cases will appoint that individual as guardian for your children.
That is a question that to be complete requires a complex answer. A Will is a written document that nominates an individual or corporate Personal Representative to be in charge and indicates how your property will be distributed at the time of your death. It also allows you to appoint a guardian for your minor children. A Will goes through a Probate process at death. A Living Trust can provide asset management during your lifetime, management and direction on the transfer of your assets at death, and it appoints a Trustee to be in charge. The Trustee can be yourself and or spouse or another individual or Corporate Trustee of your choice. It allows you to name a Successor Trustee upon your death or incapacity. Court involvement is not required with a Trust.
Because laws and family situations change, it is recommended that your Estate Plan be reviewed every three (3) to five (5) years. If the family experiences a marriage, divorce, disability or death then it should be reviewed as soon as possible after the change.
▶ I have a child with whom I have no relationship and I do not want him/her to get anything after my death. Can I disinherit them?
You may disinherit a child, but your Estate Planning documents must state your intent clearly. A Trust based Estate Plan is often the preferred Estate Plan in this situation. The reason a Will is often not preferred is because before assets can be transferred according to your wishes in your Will the Will need to be admitted to Probate and the Personal Representative that is nominated in the Will actually needs to be appointed by the Court. When you disinherit someone and they get the required notice of the request to admit the Will they may delay the admission of the Will and appointment of the Personal Representative. Trusts on the other hand do not need to be admitted to the Court to be usable. Therefore, if you die and you have a Trust based Estate Plan your Successor Trustee will have authority to act immediately.
If you become incapacitated and do not have a Financial Power of Attorney in place, a Court proceeding, (Guardianship of the Estate) may be necessary to appoint someone to take care of your financial affairs. If you do not have a Health Care Power of Attorney in place, a Court proceeding (Guardianship of the Person) may be necessary to appoint someone to make your medical and placement decisions for you.
Yes. It is a good idea to name one or more alternate agents. If your first agent is not willing or able to act then your alternate will be allowed to act on your behalf. (make sure to inform your agents of your wishes and make sure they are willing to see your wishes through)
▶ Mom is living at home, but Dad was just transferred to a Nursing Home. Is there any planning that Mom can do to preserve their assets?
Yes, this is a critical time for asset protection planning if it has not been done already. There are laws that can be utilized to preserve the home and other assets for your Mom and planning that can be done to obtain governmental benefits which would pay for a portion of your Dad’s care. It is important to seek the advice of an Elder Law Attorney as soon as possible.
▶ In order to avoid Probate can’t I just put one of my children on my bank accounts and on the deed to my house?
I would not recommend doing either of those actions, unless advised to do so by an Elder Law Attorney. Having your child on as a joint owner of your assets can make you ineligible for Title 19 because Medicaid will consider that transaction a gift. Additionally, if you have more than one child and do the above, once you die there is a greater likelihood of litigation in the family. The assets you placed jointly with one of your children will vest 100% to that child, excluding the others. This can cause the other children to seek legal advice and challenge the transfer alleging that it was a transfer for convenience only.
▶ My Mom just died owning a house and other assets. Our Dad predeceased our Mom. She did not have a Trust. We think she may have had a Will. What do we do now?
The funeral and burial should be attended to. If your Mom had a Will, her nominated Personal Representative may know where the Will is. The Will should be guarded for safekeeping until the death certificates arrive. Since your Mom did not have a Trust, a Probate proceeding needs to be started whether she has a Will or not. A Probate proceeding starts with the filing of the original Will, or a statement that you can’t find one, a death certificate and many Court forms. Although an Attorney is not required to go through the Probate process, it is at this time that we recommend the nominated Personal Representative or one of the children if there is not a Will seek the assistance of a Probate Attorney.
▶ Dad just died, Mom is still alive and they had a Trust. I am their eldest child and I was nominated to be the Co-Trustee with Mom when Dad died. Since Mom’s still alive, there isn’t anything that we need to do right?
This is a common misconception and is not correct. A new Certification of Trust should be prepared noting that you are the Co-Trustee and the Trust will need an EIN. Also, the Trust should be reviewed at this time because often times the Trust document directs that the surviving spouse and or the Trustee need to identify the assets and transfer them into new Trusts as set forth in the original Trust. Even if all assets remain in the original Trust, after the death of one spouse, the basis in the assets often changes, which can affect taxes. Therefore it is important at this time to have an Estate Planning Attorney familiar with Trust Administration review the Trust.
▶ My Uncle just passed away. He had a Trust and at his death he nominated me as the Successor Trustee. All I have to do is locate the assets and pass them out according to the Trust correct?
This is another common misconception. It is assumed that because there is a Trust, which does not require Probate that there are not formal steps that need to be taken. This assumption is incorrect. If the Trust is a legal and binding document its formalities need to be followed. An inventory is usually required, as well as an accounting of all activity during the time you are Trustee. Documents need to be gathered to substantiate these numbers. A notice to creditors is often recommended and there is usually at least one tax return that the Trust needs to file. It is recommended that an Attorney familiar with Trust Administration be involved earlier rather than later.
Yes. To protect an individual with special needs a well drafted Estate Plan is key and must be planned carefully. The goal is to structure your Estate Plan to provide funds for your disabled family member using tools that preserve their ability to receive governmental benefits.