Estate Planning, Wills, Trusts & Probate

Many people avoid proper estate planning because they do not like thinking about death.  Estate planning is generally considered the process by which people develop a plan that ensures that the assets they have worked so hard accumulating during their lifetime are protected and distributed to those they love.  Without proper estate planning, the Internal Revenue Service (IRS) stands to inherit a large portion of your assets.  Fortunately, it’s not too late to write the IRS out of your will.  We can help you implement a variety of advanced tax strategies to keep your assets out of the hands of the IRS.  Our firm handles a variety of estate planning matters and advises our clients so as to gain the maximum benefit of all laws while, at the same time, carrying out the person’s wishes.

    •  Wills – The most widely known and accepted form of estate planning is the “Will”.  Wills afford a person the opportunity to dispose of his or her estate upon their death in a prescribed, predetermined manner.  Of equal importance, you also set forth the guardian of any minor children who may survive you.  Without a Will, the state will decide who takes care of your minor children.  The failure of one to make a Will does not necessarily negate the distribution of the decedent’s estate to his or her heirs.  If a person dies without a Will, the remaining estate must be probated “intestate.”  This means that upon conclusion of the estate’s probate administration, the remaining assets will be distributed according to your state’s laws for intestate succession.  In other words, the decedent’s assets may be distributed in part to a surviving spouse, children, grandchildren, or perhaps next of kin.  Of course, without a Will you don’t have any input regarding the heirs of your estate nor do you provide for a guardian of any minor children.

    •  Living Trust – One of the most common and popular tools used in Estate Planning is the use of what is commonly known as a “Living Trust” or “Revocable Trust.”  This type of trust sometimes has advantages over a Will and can be used to address your Estate Planning needs efficiently and effectively.  Living Trusts will keep your assets from being subject to Probate. 

    •  Irrevocable Trusts – There are many kinds of irrevocable trusts, which simultaneously provide asset protection and accomplish a variety of estate planning goals. 

PROBATE

Probate is a mystery to most of the public.  Many attorneys do not do a very good job of educating the public about probate and its processes.  In its most basic terms, Probate is nothing more than a court-supervised transfer of title of an asset.  The goal is to take title out of a deceased person’s name and to put it into a living person’s name.  Who the recipient may be of a deceased person’s assets depends upon whether or not that deceased person left instructions in a Will identifying the recipient or, if no Will is found, which statutes apply identifying the recipient by default.

Though this explanation of Probate may seem simple, the process usually is not.  In a typical Probate there are a number of different persons interested in the Probate estate.  The most common are creditors, family members, beneficiaries, the surviving spouse, attorneys, the judge, and the personal representative for the estate.  Each person has a different interest in the Probate that is protected by law.  Because of those protected interests, the steps undertaken to complete a Probate can be lengthy, time-consuming, and costly.

•  What to Do When a Family Member Dies – This is probably the most critical time of the Probate process.  At this point, your goal should be to locate the decedent’s Will and marshal his or her assets to prevent any dissipation of the estate.  The following steps are suggested:

    °  Search for and preserve the Will and other estate  planning documents.  If there is a Will, identify  and contact the Executor named in the Will.
    *     Do not tamper with the Will (ie. remove the staples) in any way.

    °  If there is no Will, then an Administrator needs to be nominated and approved by the court in order  to proceed with the Probate.
               
    °  The Executor or the Administrator should next hire an attorney to file the necessary probate pleadings to secure the assets and prevent any dissipation.

    °  At this time the Executor or Administrator should also inventory the assets, begin investigating who the creditors of the estate may be, marshal and  secure valuable assets, obtain several death certificates for asset transfers, and notify the heirs that the probate process has begun.

•  Not All Assets Require Probate – Only the assets that were exclusively titled in the name of the decedent at the time of his or her death require probate.  Thus, assets held in joint tenancy, owned by a trust, or which have a beneficiary designation, such as life insurance policies or retirement accounts, will not be subject to probate.  These types of assets are transferred by operation of law upon proper application to the court to the new owners.  The transfer process is usually fairly simple.  However, even though an asset is not subject to probate it may still be subject to estate tax.

•  Types of Probate – Not all Probates are the same.  Generally speaking, the
greater the size of the probate estate, the more in depth the probate process will be.