Showing posts with label Protecting You And Your Family. Show all posts
Showing posts with label Protecting You And Your Family. Show all posts

Wednesday, July 20, 2016

Wills for Estate Planning

A Will is the primary tool of the probate system. Your Will is like a letter to the Court telling the Court how you want your property distributed.  Then you must make sure that you prove to the Court that all your property is collected and appraised, and all your bills and taxes are paid, before your property can be distributed to your heirs.

In Arkansas, the administration usually takes 6 to 18 months.  During this time, the deceased person’s property must be inventoried and appraised.  Heirs must be notified.  Estate and inheritance taxes, if any, must be paid.  Contested claims, if any, must be settled.  Creditors must be notified and paid.  If all of this is not done before the estate is distributed to the beneficiaries of the estate, the personal representative will be personally responsible for those claims.  As a result, most personal representatives won’t distribute property until they are sure all claims have been settled.

Because probate is a public legal proceeding, your estate may become a matter of public record.  This means that anyone — including nosy neighbors and salespeople — can go to Court to find out the balance in your savings account, the value of your stocks, even the appraised value of your diamonds.



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Will Preparation and Will Drafting

First: A Will is a COMPLEX WRITING

All the normal people are fighting to discover how to write a will.

However, this presents a unique opportunity for the smart planner like you.

The government usually has a plan in place if you don’t.

However, by writing a will, your plan takes over.  Your goods go where you want them to go (with certain limits).

A Will has many components that must be done in order for the will to

  1. Not be challenged easily
  2. Be valid
  3. Revoke all prior wills
  4. Disinherit children and heirs properly
  5. Be properly signed (in a signing ceremony)

These are only a few of the things you need to know.  Only a professional estate planning attorney knows all of the ins and outs of a will.

Second: A handwritten (holographic) will is valid in Arkansas

You can write your will out longhand. At probate time though, it may take the testimony of three credible witnesses, who are not mentioned in the will, to validate the handwriting and signature. (Arkansas Code Annotated § 28-25-104).

However, it is not recommended by me, except in emergency situations, that a person writes their own will without knowing all of the pieces that are needed and how real estate is handed down properly.

Third: Introduction

The introduction to a Will must

  1. Declare that it is the last Will and Testament
  2. Declare that all past wills and codicils are not valid, in the right language

Fourth: Leaving Gifts other than Real Estate

It is best to just make a list of what you want to go to whom and not attach conditions.  When you start to attach conditions to gifts, it muddies the water.  By leaving gifts with conditions, it opens the will up to challenges.  And, the more vague the condition, the more likely challenges are.

Fifth: Leaving Gifts of Real Estate

It is best to just give gifts of real estate outright to the person you want to have them. When you start adding conditions you may run into a thing called the “Rule Against Perpetuities.” It is a complex rule that can cause the real estate to not go to the person you intended.  And, like above, the more conditions you put on something, the more likely a challenge against the will.

Sixth:  Disinheriting children or skipping a generation

If you have children that have either made it on their own, or you just don’t want to leave anything to, that is your right.  Just remember, to disinherit or skip a child:

  • The child must be mentioned in the will
  • You should explicitly state that they receive no gift, or that they get $1.00

Seventh: The no compete clause

It is very important to have a no compete (in terrorem) clause in your will.  Basically, if somebody challenges the will and doesn’t win, then they won’t take under the will.  This paragraph needs to be specifically crafted.

Eighth: Disinheriting a spouse

Don’t even try to disinherit your spouse.  The spouse can make a, usually valid, claim against the will for about 1/3 (in Arkansas).

Ninth: Signatures, Self affirming affidavits, and Witnesses

Of course, a will requires your signature.  And it requires the signature of “disinterested” witnesses.  Disinterested witnesses are those that are not mentioned in the will.  They will not gain anything because of the will.  During probate, the witnesses may have be called to validate your signature, unless…

You have added a self affirming affidavit to the will, by which the witnesses swear they saw you sign, and it is your signature.  This affidavit takes the place of calling the witnesses in probate proceedings.

Tenth: Capacity

Of course, since you are reading this, you should have the needed mental capacity.  To create a will, it does not take much mental fortitude.  A person must simply be aware of what they have and who they want to give it to.

Eleventh: The rest and residue clause

I almost forgot one of the most important parts of a will…  This part of the will tells who everything you have not specifically given away goes to.

This article has just touched on the basics of writing your own will. There is so much more to know to write a good will. If you also add in a trust, then it just gets more complicated.



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Last Will and Testament

What is a Last Will and Testament?

A Last Will and Testament is instructions on how to pay the final expenses, who should take care of wrapping everything up, and who gets your stuff.

A Last Will and Testament is only one of the many estate documents of a complete estate plan. If you die without a will or trust, you are said to have died “intestate.” The state will determine who gets what in that case. You really want to put your plan in place of the default state plan.

A Last Will and Testament is a COMPLEX WRITING

All the normal people are fighting to discover how to write a will.

However, this presents a unique opportunity for the smart planner like you.

The government usually has a plan in place if you don’t.

However, by writing a will, your plan takes over.  Your goods go where you want them to go (with certain limits).

A Last Will and Testament has many components that must be done in order for the will to

  1. Not be challenged easily
  2. Be valid
  3. Revoke all prior wills
  4. Disinherit children and heirs properly
  5. Be properly signed (in a signing ceremony)


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Wills

Wills are just one tool in the planning toolbox.  It is usually the first thing people think about when you say “estate planning.”  In its simplest terms, a Will is a list of gifts and some very basic instructions to your loved ones.  However, a lot of formality surrounds the creation and execution of a Last Will and Testament.
Unlike a trust, a Last Will and Testament must go through probate to be validated and the assets distributed. The “testator”, creator of the will, does not get to have long term control over the gifts. Typically, if a trust is involved, the will simply “pours” everything not in the trust into the trust.


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Tuesday, July 19, 2016

Personal and Financial Goals

If you could have anything you want, personally and financially, what would it be?

What are your dreams?

How do you and your spouse want to spend your retirement years?

Without answering these basic questions, you are really wandering aimlessly through life.  Do you want to continue to wander in the desert, or come into the promised land?

Everybody has a vision, their internal plan, for everything in life.  Whether it is family, career, or finances.  Whether conscious or not, the vision is there.

All of these visions form the basis for your estate and life plan.

An estate plan ties all of your other visions and plans together and protects your and your loved one’s future.

Not everyone has the foresight of vision of an estate plan and what it does for a family.



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Saturday, July 16, 2016

Misconception #4

Joint ownership is a good way to avoid probate

It is true that joint ownership with right of survivorship (the most commonly used form of joint ownership) allows the jointly owned asset to transfer automatically to the other joint owner when one owner dies, without probate. However, if both owners die at the same time or if the surviving owner does not add a new joint owner before he/she dies, the asset will have to go through probate before it can go to the heirs. So, in most cases, joint ownership merely postpones probate.



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Tuesday, July 12, 2016

Promise Yourself

Promise yourself that you will get your estate planning done.

Make a personal commitment to yourself and your family that you will do everything possible to protect your family and your assets.

Setting a personal deadline will bring urgency to your planning that you should have.

If you really want a good reason why you should plan, just click here to see this post on how cost-effective planning is.

Now, set that personal deadline.



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Sunday, July 10, 2016

12 Tough Questions to Ask a Lawyer

  1. What’s your opinion of the probate process?
  2. Under what conditions do you recommend a Living Trust?
  3. How do I protect my children from abusive relatives if something happens to me?
  4. Can I keep my kids from controlling their entire inheritance at 18?
  5. How can I protect my children’s money from creditors?
  6. How can I leave money for my child’s education?
  7. How long will it take to set up my Trust?
  8. How many times do I meet with you during the process of preparing my Trust?
  9. What do you charge to set up my Living Trust and what does that fee include?
  10. What do I need to bring with me to our first conference?
  11. If I have more questions after you set up my Trust, may I call you?
  12. Can you send me information about Wills, Living Trusts, and Probate?


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How to Choose a Qualified Lawyer

Tip #1:  Choose an attorney who specializes in estate planning.  Other attorneys simply don’t have the knowledge, skill, judgment or experience to plan your estate properly.

Tip #2:  Choose an attorney you trust.  Nothing is more important in a lawyer/client relationship than having a lawyer you trust.

Tip #3:  Choose an attorney who creates your estate plan himself.  If the attorney has an assistant create your estate plan, then why hire the attorney?  Note, it’s not uncommon for lawyers in solo practice to ask a funding coordinator to transfer property into your trust.  Even so, funding is a fairly routine function and you are well protected as long as the lawyer supervises the process.

Tip #4:  Choose an attorney who provides excellent service.  Anything less is not acceptable.

Tip #5:  Choose an attorney who welcomes your questions — and structures meetings by allowing enough time to answer questions.  High-volume practices have short appointments so they can move clients quickly through the process.  I don’t know about you, but this is not the level of service I expect when I hire a lawyer.

Tip #6:  Choose an attorney who will return your phone calls quickly.  You should never hire a lawyer who won’t respond promptly to your needs.

Tip #7:  Choose an attorney who has roots in the community.  This attorney cares about his reputation and is more likely to be available in the future when you need help.

Tip #8:  Choose an attorney who is a respected source of information — one who has dedicated his practice to helping people understand their estate planning alternatives.

Tip #9:  Choose an attorney who charges fair fees.  At best, you get what you pay for.  Most people do not shop for the cheapest doctor.  Instead, they focus on the doctor’s qualifications and experience.  You should apply the same principle when selecting an estate planning attorney.  If the fee is too low, the lawyer may be leaving something out.  Make sure the fee you pay and the services you receive are of equal value.

Tip #10:  Choose an attorney who offers free initial consultations.  Shouldn’t you be able to talk with the lawyer for free before you decide whether to hire him?

Also, ask specific questions about your estate and your objectives, such as:  “How do I protect my children from abusive relatives if something happens to me?”  “Can I keep my kids from controlling their entire inheritance at age 18?”  “Can I protect my children’s money from creditors?”  “How can I leave money for my child’s education?”



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20 Red Flags

This Estate Planning Checklist identifies events that could make a significant impact on your estate.  If any of these events occurs, please call me.  For your protection, we may need to amend or revise one or more of your estate planning documents.

Changes Involving You or Your Spouse

  1. You get married.
  2. You and your spouse divorce.
  3. Your spouse dies or becomes incapacitated.
  4. Your health changes.

Changes Involving Your Children, Grandchildren or Other Beneficiaries

  1. You have a child.
  2. You adopt a child.
  3. Your child marries.
  4. Your child divorces.
  5. Your child becomes ill.
  6. One of your beneficiaries experiences an economic change, good or bad.
  7. One of your beneficiaries proves to be financially irresponsible.
  8. One of your beneficiaries has a change in attitude toward you.

Changes in Your Economic Condition

  1. The value of your assets increases or decreases.
  2. Your insurability for life insurance changes.
  3. Your employment changes.
  4. Your business interests change, such as becoming involved in a new partner­ship or corpora­tion.
  5. You retire from your business or profession.
  6. You acquire property in a different state.
  7. You move to a different state.

Changes to a Person Named in Your Estate Plan

  1. Something happens to a person named in your estate plan, such as the death or incapac­ity of your personal representative, executor, trustee, guardian or conserva­tor.


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5 Steps to a Competent Asset Protection and Estate Plan

Step #1: Learn how to deal with your incapacity.

Court Supervision.  Our system of laws allows two methods for people to care for you.  One method, Court supervision, has already been chosen for you.  If you make no decisions, the Court will step in and appoint a conservator to handle your financial matters and a guardian for your personal affairs.

Your guardian and conservator carry out the judge’s orders.  It is not likely they will handle things the way you would have handled them.  When the Court steps in, you and your family lose control.

Setting up a guardianship and conservatorship is like other matters involving the Court.  Lawyers represent all parties, including you.  Accountants manage your finances.  Doctors confirm that you need some-one to care for you.

The law requires periodic reports to make sure everyone is looking out for your interests.  What’s more, all these people must be paid for their services.  You bear this expense.

Private Supervision.  Revocable Living Trusts do not require Court supervision.  In your Trust, you decide whom you want to care for you in the event of your mental or physical incapacity.  This usually includes family members or friends.

When you design your plan, you control the outcome because the plan is set up exactly the way you want it.  By setting up a plan that allows for private supervision — with no Court interference — you save a great deal of money and make sure that your wishes are carried out.

Step #2: Choose the method for dealing with your incapacity that is right for you.

Court Supervision.  Advantages:  If you want the Court to dictate the care you receive, dictate how to use your assets, and make decisions for you, then you should use a guardianship and conservatorship.

Disadvantages: You lose control because the judge makes decisions about your care.  Long delays are common.  You pay a high price because guardianships are expensive to set up and maintain.  You lose your privacy because your personal and financial affairs are open to public view.  The emotional strain of reporting everything to the Court takes a toll on you and your family.

Private Supervision through a Revocable Living Trust.  Advantages:  You and the people you select make all the decisions.  You maintain control.  You can make decisions quickly.  You save money because a Revocable Living Trust is less expensive than a guardianship.  You don’t have to involve a variety of lawyers, doctors and accountants.  You maintain your privacy because your documents are not open to the public.  And you reduce stress on your family.  Disadvantages:  Generally, none.

Step #3: Learn how you can distribute property during your lifetime and after your death.

Court Supervision.  The laws of all states are written so if you do nothing to plan your estate, the Court will distribute your property according to the laws of the state where you live.  If you write a Will, and the Court is satisfied that the Will is valid, under the supervision of the Court your property will be distributed according to the terms of your Will.  This process is called probate.

Private Supervision.  You can distribute your property privately, without Court involvement. Your choices consist of the following:

Joint Tenancy With Right of Survivorship:  You should own property in Joint Tenancy only in very rare circumstances.  Review my “8 Dangers of Owning Property in Joint Tenancy” in this handout.

Gifts:  Gifting is a good way to get property out of your estate so it avoids probate and reduces estate taxes.  In 2008, the IRS limits the value of assets you can give without paying a gift tax to $14,000 per person per year.  The downside of gifting is that you lose control of the asset.  If you give property to your children, they might sell it against your wishes.  And if you outlive your child, your gift may not be returned to you.

Revocable Living Trust:  A Revocable Living Trust is a separate legal entity that holds title to property. After you set up a Trust, you put property into your Trust, called “funding the Trust.”  At the time of the funding, you change the title on real estate deeds to the name of the trustee and trust, such as the “John Jones, Trustee of the Jones Revocable Living Trust u/a/d July 1, 2009.”  When you transfer personal property and real estate into your Trust, you no longer own these assets in your own name.  This means these assets don’t have to go through probate.

Step #4: Choose the method for distributing your property that is right for you.

Court Supervision.  Will or no estate plan:  Either is easy to maintain during your lifetime, and your distribution plan is supervised by the Court through probate.  In the worst case situation, probate can cost thousands of dollars and take months or even years to complete.  You lose all privacy because your file is a matter of public record.  Small estates can transfer title without the need for qualification, but this method is not available to most estates.

Private Supervision.  Revocable Living Trusts allow you to control your property without Court involvement.  Revocable Living Trusts completely avoid probate if properly funded before death.  They avoid the dangers of Joint Tenancy.  They keep your affairs private.  Upon your death, subject to payment of debts and taxes, your estate is able to transfer to your heirs within a few days.  Plus, your Revocable Living Trust eliminates the need for a guardianship or conservatorship.

Step #5: Act now, while you are competent to make your own decisions.

None of us likes to think that we may become incapacitated or die.  Yet it happens every day.  We all have friends who have been injured in car accidents.  We all know people who have had heart attacks, even when they were in “excellent health.”

If you want to see how dramatically people’s lives change every day, just watch the news.  You’ll see car accidents, plane crashes, shootings, heart attacks, drownings…the list seems endless.  And yet every one of those people thought their day would end just as safely as it began.

Will you be next?  The greatest gift you can give your spouse and your children is an asset protection, elder law, and estate plan — a plan that you have designed to carry out your wishes when something happens to you.  This is how you can insure that you won’t become a burden to your children.

I sincerely hope you live a long, happy life in excellent health.  I also hope you have your asset protection, elder law, and estate plan ready to protect your family from probate and the other problems we all face every day.



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Trusts In Estate Planning

Trusts are a very powerful tool in estate planning.

First, a revocable living trust can provide management for your assets in times of incapacity without your loved ones needing to go  to court.

A trust avoids the long, emotionally tiring process of probate.

Trusts protect your privacy by keeping your affairs out of the courts.

Trusts help protect your assets from creditors and financial predators.



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Testamentary Trust

A trust created in an individual’s Last Will and Testament is called a testamentary trust.

Because a will can become effective only upon death, a testamentary trust is generally created at or following death.



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Setting Up A Living Trust

Setting up a living trust is not a do it yourself job for the faint of heart…

You need to understand the legal definition of a trust, and make sure that all of the elements of a trust are present before signing the document.

You next need to make sure that all of the “legalese” is proper.  One sentence, one word in some cases, can make the difference between an effective trust and an ineffective trust.

Titling assets to the trust needs to be done properly.  While much of it can be done by you, unless you are familiar with creating and registering deeds, it is a job best left to a professional.

One misstep can cost $1000’s in further legal fees or lead to public court battles that you want to avoid.



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Revocable Trust

A Revocable Trust is a trust that you can dismantle (revoke) during your lifetime.

A Revocable Trust kind may be changed, altered or revoked by you at any point during your life, provided you mentally competent. Revocable trusts are becoming increasingly common in the US as a substitute for a Last Will and Testament to minimize administrative costs associated with probate and to provide centralized administration of a person’s final affairs after their passing.

Contrast that with a irrevocable trust, which takes careful legal maneuvering to even get assets out of.



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Revocable Living Trust

A Revocable Living Trust is a trust (Revocable Trust) that is

  1. Revocable (as long as you are mentally competent and alive)
  2. Established during your lifetime

During your lifetime, with a revocable living trust, you typically play all the roles in the trust.  You are the “grantor” by putting assets into the trust.  You are the “trustee” because you are managing the assets.  And finally, you are the “beneficiary” because you are getting the benefit of the assets.  But, you don’t have to play all the roles.  There is nothing that says you can’t have a third party trustee.

You get most, if not all, the benefits of a trust, but maintain full control over the assets.



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Irrevocable Trust

An irrevocable trust is a trust in which the terms cannot be amended or changed until the terms or purposes of the trust have been completed. In rare cases, a court may change the terms of the trust due to unexpected changes in circumstances that make the trust uneconomical or unwieldy to administer, under normal circumstances an irrevocable trust may not be changed by the trustee or the beneficiaries of the trust.

Contrast with a revocable trust.



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Grantor Trust

A trust over which the “grantor” retains the ability to direct or control the assets in the trust.

The Internal Revenue Service has a set of complicated statutes and regulations to determine if a trust is a “grantor” trust or not.

Basically, to not be a “grantor” trust, the “grantor” must give up all control over the assets in the trust.



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Trusts

Trusts come in many different types.

One legal definition might read like this:  “A trust is a contract between the grantor and trustee where the grantor transfers title of assets to the trustee and the trustee manages the assets for the benefit of the beneficiaries.”

A trust is a container, like a bucket, that holds assets.  You have the “trustee” hold the bucket and take care of what is in it.  The “trustee” takes care of the assets for the benefit of you or another person.

One of the most commonly used trusts for probate avoidance is the revocable living trust.



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Saturday, July 9, 2016

Types of Trusts

Trusts came in many types.

The most common estate planning trust is the revocable living trust.

You also have testamentary trusts, which are established by a Last Will and Testament.

Here is a list of some of the different types of trusts:

  • Revocable Trust
  • Revocable Living Trust
  • Irrevocable Trust
  • ILIT – Irrevocable Life Insurance Trust
  • SNT – Supplemental Needs Trust
  • Testamentary
  • Dynasty


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