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Labor Day is a Good Day to Talk About Your Future!

Labor Day is a Good Day to Talk About Your Future!

Labor Day is a Good Day to Talk About Your Future! You’ve worked hard (labored) all your life and have accumulated an Estate. Yes, I said Estate, you have one! Everyone has an Estate, from meager to millions, everyone has an Estate. The question is: Do You Have an Estate Plan?

What is an Estate you ask?

An Estate is all of your assets. Your home, your vehicles, 401k plans, stocks, bonds, annuities, personal property, coin collections, jewelry. Perhaps you want those things to be left to specific people. Enter Estate Plans. From the most minimal, like just Powers of Attorney, to Wills, and Trusts, we are expert in asking you key questions and accumulating  key information from you that will enable us to create your own personal, unique, Estate Plan.

We are fluent in the area of Estate Planning and Elder Law. Not elderly? No problem, we cater to all ages young and older. You may think you are too young to create an Estate Plan. Do you want control over  the who, what, when, and where your assets go when you pass? Do you want all of your assets going to the court system and lawyers, and your loved ones having to go through the Probate process which averages over a years time?  Do you want doctors, and possibly the court, to make medical decisions for you, not having to listen to the people who loved and cherished you? What if you had everything laid out and the person you chose to carry out your wishes only has to follow the instruction you left behind? This is the one of the many benefits of creating an Estate Plan!

Perhaps you are approaching what we define as Elderly. You especially need an Estate Plan. Unfortunately it is not the most pleasant subject, but the older you get, the more likely it is that you will accrue some type of illness or disease. Illness and disease can cause you to eventually become incapacitated. If you are married, that may lay a heavy burden on your Spouse. Perhaps your divorced and have children, it would be your children left with the burden. No parent wants that. Nursing Homes in Florida average 8 to 10 thousand dollars a month. If you are more affluent you will be expected to pay this out of pocket. However, there are ways to protect your Legacy, and we know all of them.  You could call them tricks of the trade, we prefer to call it knowledge and experience. Being experienced and seasoned in Elder Law lends that extra element to Estate Planning for those it applies to. Do not dismay young ones, we are also adept in Business Planning, LLC creation and Asset Protection. Labor Day is a Good Day to Talk About Your Future!

At what age should you have an Estate Plan?

At what age do you want to have control over your end of life decisions? Life is not promised and is unpredictable.

At the minimum we suggest that from age 25-30 you should have:

  • Advanced Healthcare Directives, which are important should you become incapacitated. These documents include a Healthcare Surrogate Designation, also known as a Medical or Healthcare Power of Attorney.
  • HIPPA Authorization, which will enable those you list and choose to obtain medical information about you. In this time of COVID-19, hospitals and doctors are more inclined to isolate you and not allow anyone to come in and visit you. This can cause undue stress on your loved ones, further these entities do not legally have to tell your loved ones anything unless you have given express permission as defined in the HIPPA privacy laws. With a HIPPA Authorization document, you choose who has the right to know your condition, the tests which have been given you, the results, medications you are on, and  your general prognosis. Otherwise, your loved ones may be left in the dark.
  • You need a Living Will, which is active while you are still alive. A Living Will will define your wishes should you become incapacitated. There a lot of things to consider. Do you want to be a organ donor? Do you want to be resuscitated if you are in a vegetative state and continue to exist in a vegetative state because you have chosen to do so? Perhaps you do not. These are all your decisions and perhaps your loved ones do not really know your wishes as it is not something that comes up in general conversation. If you do not have these documents in place someone else will choose for you, possibly not knowing what your true wishes are. Do you want to be buried or cremated? Again, a decision that will be made for you without the proper Estate Planning documents in place.
  • A Durable Power Attorney. This is also referred to as a Financial Power of Attorney. Do you want your loved ones to be able to take over your finances effortlessly? Do you want them to be able to receive what you leave them without aggravation? Banks, Insurance Companies, Government agencies, all differ and all have  different requirements to be able to claim or collect your assets and existing accounts. Having a Durable Power Attorney gives who you chose as your Personal Representative, or Executor of your Will the power to control and settle your Estate as easily and smoothly as possible.

Age 35-60:

  • You will need everything that you should have had from 25-30. Now that you have a family, you need a Last Will and Testament at the very least to make sure a guardian is appointed to take care of your children should something happen to you. A Last Will and Testament becomes active when you pass. It enables you to have a say in what happen to your assets. For example:
      • You can leave your Estate to someone who is not a blood relative, someone who, without an Estate Plan, would not be able to inherit from you at all.
      • you can leave money to a church or other charitable organization.
      • You can disinherit a relative whom you do not want to inherit part of your Estate.
      • You can leave everything to your dog. (You would be surprised how often this happens)

Whatever you choose you get to decide. Not the State. In addition to saying who receives your Estate, a Will also states who will be in charge of your Estate during Probate-because, unlike a Trust, a Will must be probated. Probate may be a scary word and you may have heard of horror stories, but having a Will will negate a lot of those headaches. A Will clearly defines your wishes and will likely be executed exactly how you wished. If you do not have an Estate Plan state law decides who gets your assets when you die. These laws (often called “intestacy laws”) generally provide that your estate will go to your blood relatives, if you do not have an Estate plan.

Age 60+

You have saved your money over the years. Now you are thinking about the Legacy you want to leave your loved ones. You want things to pass smoothly and easily. You certainly do not want to  bog them down in the Probate court system after you pass away. Maybe you ant to protect the kids’ inheritance from divorce and law suits. A Living Trust makes sense to achieve these goals. Maybe one of your children is a spendthrift, or has a substance abuse problem. they are still your child and you especially want to leave them something that will enhance their life. with a Trust you get to choose what and when your child receives their inheritance. you can make them wait until age 30 and then dole their inheritance out in small amounts as to keep them from “blowing their inheritance”. we offer several different Living Trust plans designed to meet each clients unique needs.

Labor Day is a Good Day to Talk About Your Future! So this Labor Day, while you are enjoying an extra day off from laboring all year to amass a Legacy to leave behind for the ones you love, and make sure they are taken care of should you pass, why not put some thought into what your own unique Estate Plan might look like. Consider passing Intestate and what that would look like for your loved ones. If your married, have that conversation you have been avoiding. it can actually be a bonding event as you can express to each other your end of life wishes knowing that your partner in life will honor your wishes to the best of their ability. Ask the hard questions and put things into perspective. If after giving it due thought, you decide you need an Estate Plan, we would be honored to help you create your own, unique to you, Estate Plan. Let us ask you the burning questions, get a clear position on what you want and need, and help you to create and protect your Legacy. you can reach one of our Team Legacy members at 904-880-5554 or e-mail:  [email protected]

Labor Day is a Good Day to Talk About Your Future!

Happy Labor Day Everyone! From Team Legacy.

Read more related articles at:

Guide to Estate Planning By Age 

8 Things You Need for an Estate Plan at Any Age

Also, read one of our previous Blogs at:

Yes, You Need an Estate Plan, Even If You Don’t Have an Estate

Click here to check out our On Demand Video about Estate Planning.

Dying Intestate

WHAT HAPPENS WHEN SOMEONE DIES WITHOUT A WILL?

WHAT HAPPENS WHEN SOMEONE DIES WITHOUT A WILL?

A Will gives Seniors Peace of Mind

If your older adult wants to be sure that their assets and property will be given to certain people or organizations after they pass away, they must have a will.

A will is especially important if your older adult plans to give assets to their unmarried partner, close friends, or charities.

Otherwise, the court decides what happens to their property – and certain people or groups will be left out because of the current laws.

What is a will used for?

A will is a simple, inexpensive legal document that states someone’s final wishes.

It’s used by the county court to make sure those wishes are carried out.

Some people also use a will to:

  • Name an executor to carry out the terms of the will
  • Name someone to manage property left to minor children
  • Decide how debts and taxes will be paid
  • Provide for pets
  • Serve as a backup to a living trust

A will does not cover every situation,  but it’s much better than having nothing in place. Plus, a will saves family the headache and costs of a prolonged probate.

For more complex situations or to accomplish things that cannot be included in a will, it’s best to talk with a lawyer to see if a trust or estate plan would work better.

What happens when someone doesn’t have a will?

When someone dies without a will, it’s called dying “intestate.”

When that happens, none of the potential heirs has any say over who gets the estate (the assets and property).

When there’s no will, the estate goes into probate.

Probate is a legal process in which the probate court uses the laws of the state to decide who inherits what.

Probate can take anywhere from a few months to a few years, depending on how complicated the estate is.

Legal fees are paid out of the estate and it often gets expensive.

What happens when an estate without a will goes into probate?

The intestate succession laws that decide who will inherit are different in every state.

Usually, the estate will be split between the surviving spouse and children.

If someone is single with no kids, the state will decide which relatives will inherit. If no relatives can be found, the entire estate goes to the state.

Usually, only spouses, registered domestic partners, and blood relatives can inherit under intestate laws. Unmarried partners, friends, and charities get nothing.

Read more related articles at:

How Does Dying Intestate Affect Your Estate?

Inheritance Laws in Florida

Also, read one of our previous Blogs at:

What Does it Mean to Die Intestate?

Click here to check out our On Demand Video about Estate Planning.

Trustee

The Role of a Successor Trustee After the Trust Creator Dies

The Role of a Successor Trustee After the Trust Creator Dies

BY

The Role of a Successor Trustee After the Trust Creator Dies. When you set up your revocable living Trust, you must name a successor trustee—someone to step in and administer and settle  your Trust for you after your death. This person would also be called upon to serve should you become mentally incapacitated. The person making a revocable trust often acts as the trustee of their accounts. This is in contrast to an irrevocable trust, where someone else must be appointed to this position.  A successor trustee waits in the wings to take over when you can no longer manage the trust yourself.

Trust Formation Documents

Your successor trustee is responsible for settling your trust or continuing to manage it for you after your death. The exact duties would depend on the terms you set for your trust in its formation documents. These documents are called the trust agreement. As an example, you could direct that all assets and property held in the trust be transferred to beneficiaries when you die. You may further state that the trust should then be closed. Your successor trustee is obligated to follow these and any other directives you establish. In some cases, you might want your trust to remain up and running after your death. This is often done in cases where it’s holding a property for the benefit of your minor children. Minors can’t legally own property, so your trust would continue to hold it for them until they reach an age you specify. Your successor trustee would make distributions to their guardian for their care per your instructions. They would oversee these distributions and manage the assets held in your trust to ensure that they continue to generate sufficient income.

 

Naming a Successor

When you choose someone as a successor you should make sure they are capable of carrying out these duties. Serving as a successor trustee is a huge responsibility, and it’s often a time-consuming burden. You should be able to choose the right person—or name an institution like a bank—for the job. It is best to work with an estate planning attorney. It’s important to name one or more “backup” trustees as well in case your first choice isn’t available to serve. Don’t name someone without speaking with him first so you can be sure he’s willing to accept the job.

The successor has several responsibilities they must carry out after the death of the creator of the trust. These responsibilities may be broken down into the following duties:

    • Locating and protecting your trust assets
    • Collecting life insurance policies, annuities, and retirement accounts on which your revocable living trust has been named the primary beneficiary
    • Coordinating with the personal representative or executor of your estate if probate is necessary
    • Obtaining the date of death values for your trust assets, including appraisals of real estate and business interests
    • Identifying your creditors and paying off these debts
    • Determining your income tax or estate tax liabilities
  • Preparing and filing all required income tax and estate tax returns
  • Paying the ongoing expenses of administering your trust until it is terminated and its remaining property can be distributed to your beneficiaries
  • Raising the cash necessary to pay off your debts, the ongoing expenses of administering the trust and income tax and estate tax liabilities
  • Investing and managing your trust assets until they can be distributed to your beneficiaries

 

Probate Issues

Revocable living trusts are one way that you may avoid probate. Probate is a lengthy and costly court proceeding that determines the deposition of your assets after your death. However, you might have to create a pour-over will to move assets not in the trust into your trust at the time of your death. This process would require probate. Each state has specific rules for probate, so, an estate attorney can help you in this regard.

Read more related articles at: 

Successor Trustee: Duties, Powers and More

What is a successor trustee?

Also, read one of our previous Blogs at:

Do You Know Your Job as Executor, Agent or Trustee?

Click here to check out our On Demand Video about Estate Planning.

 

Choose executor

Choosing the Right Executor

7 Tips for Choosing the Right Executor

What traits make for a good executor, and who by default is unable to serve?

Choosing the Right Executor.  It’s an important question: Who can be trusted to take care of your estate when you’re gone?

When you pass away and your will is accepted for probate, your executor “steps into your shoes,” meaning he or she can perform all the legal tasks you used to do. This includes selling your property, paying creditors, bringing lawsuits, reviewing medical records and distributing your assets to others. Clearly, acting as an executor is an important job, so who should you choose to handle your final personal affairs? What traits make for a good executor, and who by default is unable to serve.

1. Pick Responsible Parties Only

The most important quality your executor must have is responsibility. You don’t have to be an attorney, accountant or a financial planner to be an executor. You just have to be responsible enough to hire the right people to help you, address estate matters quickly, effectively communicate with beneficiaries and make hard decisions when necessary. Remember that an executor gets paid a commission for doing his work, so you should expect him to pursue his responsibilities as he would for any other job.

If you do not have any responsible friends or family members, you can name an attorney, accountant, bank or trust company as executor. However, these parties usually charge additional fees for their own services (such as an accountant charging separately to prepare tax returns for your estate) or demand higher payments than a friend or family member (banks and trust companies often refuse to serve unless they make near-usurious commissions).

2. Consider People in Good Financial Standing

Your choice of executor needs to have suitable personal finances of his own. People with many creditors and liens against them, individuals with no credit history and those who have declared bankruptcy are not good choices, since they often can’t get bonded.

3. Name at Least One Younger Successor

It is not unusual to only draft one will during your lifetime, and since wills do not expire your estate may be probated using a will that is more than 40 years old. Of course, many things can change during that time. While you only need to name one executor to make your will valid, you should try to name at least one additional younger, healthy successor executor who is likely to outlive you in case you only draft one will during your lifetime and your first choice of executor dies before you, or chooses not to serve.

This can either be done by explicitly naming the person (“If my husband is unable to serve, I appoint my friend Liza Cortez”) or by creating a mechanism in your will (“Any children of mine who are at least 30 years old at the time of my death shall serve as Successor Co-Executors”).

4. Don’t Worry: Location Usually Does Not Matter

An executor does not need to live close to you. Yes, he or she may prefer to make an in-person visit to your house to ensure your personal property is distributed and to meet with your estate’s attorney, but many of an executor’s tasks can even be done without ever coming to your town. If your estate requires a service, such as disposing of the furniture in your apartment, it is likely your executor can hire a company to do it for her, and pay a responsible party to be present while that service is provided.

5. No Drama, Please

Some people may have beloved friends or family members who are the estate’s only beneficiaries, but they do not get along. This is often the case where two siblings don’t like each other, or when one child took care of her parent the last several years of her life and is receiving the same bequest as her brother, who didn’t even call his parent during that time. If only one of the parties is named as executor she may use the position to exact revenge on the other individual by causing delays, adding hardship or just being mean. In this situation, you have two choices: Either name both parties to serve together to force them to work with each other (thereby avoiding an unequal playing field), or name neither of them (and minimizing court disputes). The latter approach is often better.

6. Don’t Name Disqualified Individuals

One of an executor’s primary purposes is to sign checks. Courts tend to not approve executors they have trouble getting jurisdiction over, as well as people who have a criminal past. Therefore, non-U.S. citizens living outside of the U.S. usually cannot act as sole executors, and former felons are almost always disqualified from being appointed.

Remember that minors cannot serve as executors, and if you do name a person who is currently not a minor it is usually best to only allow him to serve if he has attained a certain age, since many 18-year-olds may not be ready to handle executor tasks.

7. Think About Someone Patient and Emotionally Grounded

Most important, you want an executor who can handle doing hard work without hesitation, maintain emotional balance and apply tough love to beneficiaries. At some level probate has not changed much in the last 600 years, meaning a system that was originally designed to transfer land and livestock now distributes stock portfolios, patents and corporate business interests. Mistakes can easily be made, clerks may disagree on their approach to authenticate documents or court procedures, and middlemen will get confused.

Do not be fooled: Probate work is hard for executors, bureaucrats and hired professionals. Even simple probates can be long and frustrating processes, from fulfilling seemingly arbitrary court requirements, to getting access to apartment keys and renting dumpsters. An executor must be ready to invest her time, not expect immediate perfection and remind beneficiaries to be patient.

Read more related articles at:

Avoid Probate

Estate Planning Secrets: How To Avoid Probate

Estate Planning Secrets: How To Avoid Probate

Russel Morgan

Estate Planning Secrets: How To Avoid Probate. Probate is known for being an unnecessarily complicated and lengthy procedure. Even when the estate being probated is fairly simple and straightforward, proceedings can go on for some time, depending on different factors. With larger estates or those riddled with legal issues, probate can take well over a year to complete. In addition, estates that are submitted to probate often end up losing a significant portion of their value through estate taxes, court and attorney fees, and other expenses.

If you wish to learn more about how to avoid having your estate caught up in the probate process, this post will cover estate planning methods that you can use to secure your assets. Be sure to discuss these with your estate planning attorney to determine what estate planning tools will work best for you.

One of the easiest ways to protect certain assets from being submitted to probate is by converting them to what are known as transfer- or payable-upon-death accounts. This is an effective option to use for estates that are primarily comprised of financial accounts.

A transfer-upon-death account works by appointing a beneficiary to be the designated recipient of the funds held within an account in the event of the account owner’s death. Most states permit beneficiaries to be listed for bank accounts as well as retirement accounts. A few states also allow transfer-upon-death arrangements to be made for vehicles or real estate property.

Joint Ownership

Joint ownership is another estate planning tool that can be implemented to bypass probate. As the name implies, joint ownership refers to the ownership of a property by two or more people as indicated by a proper title. Should one owner of a property pass away, the property will automatically go to the other owner.

In order for joint ownership to work in avoiding probate, it is extremely important to ensure that the property title includes both owners. This will secure the property, as its ownership transfers by default upon the death of either title holder. The most common forms of joint ownership include:

• Joint tenancy with right of survivorship

• Tenancy by the entirety

• Community property with right of survivorship

Revocable Living Trusts

A revocable living trust is a legal document that is created during your lifetime and determines how your property will be distributed upon your death. A revocable living trust includes the provision that you may modify or cancel its terms at any time. However, simply creating a trust will not suffice to protect your assets from probate.

The secret is that whatever assets of value you have need to be placed within the trust so that the trustee becomes the owner of those assets instead of you. In the event of your death, the trustee can then transfer the assets directly to any beneficiaries you have designated within the terms of the trust. Because these assets no longer form a part of your estate and are no longer under your ownership, they will not need to go through probate.

Gifts

Another method to avoid having to probate your finances and assets is through gifting. Giving some of your property and assets to a family member, loved one or organization means that those gifts are removed from your estate and subsequently do not have to be submitted to probate as they no longer belong to you.

Also, gifting assets of significant value lowers the cost of probate. Assets with high monetary value can raise probate expenses as well as overall estate taxes. Making a gift of these valuable assets can relieve some of these costs. It should be noted, however, that the annual gift tax exclusion amount is currently set at $15,000. This means that you can gift up to $15,000 a year per person without being required to file a gift tax return. Exceeding this amount would require filing a gift tax with the IRS.

Whether your estate is large or modest, these options are available to you and can help you avoid getting your estate stuck in probate. Avoiding probate isn’t as difficult as it may seem — it simply requires knowing a few estate planning secrets.

The information provided here is not legal advice and does not purport to be a substitute for advice of counsel on any specific matter. For legal advice, you should consult with an attorney concerning your specific situation.


Read more related articles at: 

How Probate Laws Work in Florida

Also, Read one of our previous Blogs at:

Why You Might Want to Avoid Probate and How to Do It

Click here to check out our On Demand Video about Estate Planning.

 

fighting over inheritance

How To Avoid Family Fights Over Mom and Dad’s Estate.

How to protect your estate from greedy family members

By Attorney Patti Spencer

Special to THELAW.TV

How To Avoid Family Fights Over Mom and Dad’s Estate. Brother against brother, father against son — are we talking about the Civil War? No — it’s a fight over an estate — some of the most bitter, destructive fighting you can ever see. From diamond rings to second homes, greed is fueled. Don’t let it happen to your family.

The fact that children have no “right” of inheritance is a hard concept for many to swallow. We live in a society where the entitlement philosophy has a firm grip. People feel entitled to everything from free health care and free child care, to entitlement of Mom’s and Dad’s estate. The law of an inverse relationship applies: The person who has the least to do with the deceased imagines he has the biggest entitlement to the estate.

I have very few clients who expect their children to fight over the estate. Most parents assume that children will exercise good will and settle things amicably. Maybe they will, but my advice is never assume.

Here’s what to do to avoid a family fight over your estate:

1. Tell your family what your estate plan is, and why. Your kids and other family members are not mind readers. Have a family meeting. Smoke out and solve problems in advance. Communication is the best gift you can give to your family.

2. Never make one of your children dependent on the good will of another child. Don’t expect a child to take care of his sibling or “do the right thing,” whatever you think that may be. Never put property in joint names with one child expecting that child to share with his siblings. Never give a child’s share to a sibling to “protect” it from a child’s spouse or creditors. If lawyers have to get involved, the relationship among the children is never the same.

3. Don’t assume that equal treatment of all your children will solve all disputes. Equal shares may not be fair. What about the kid you “loaned” money to buy a house who never paid it back? What about the son who poured a lifetime of sweat equity into the family business? What about the daughter who took care of you for the last 10 years? Aren’t they entitled to something extra? (From the son’s point of view, there would be no big estate without his work. From the caregiver daughter’s point of view, she gave years of her life to caring for parents who were difficult, demanding, and nearly drove her crazy. From the siblings’ point of view, he earned his money already and she lived there for years with no rent, sponging off of Mom and Dad. These two points of view are never going to meet.)

5. Make sure you pay attention to who gets your personal possessions. A recent study sponsored by Allianz Life Insurance found that when it comes to inheritance, personal items are five times more likely to create family conflict than money. This is no surprise to estate lawyers who know that the bitterest fights are over pianos and cookie jars. Arguments over these things are over memories and emotions. It is not about monetary value, and the legal fees for the dispute will far exceed the value of the item.

Ask your children what they want. Devise a method for dividing possessions up. Have you made promises to people about what they will receive? Make sure you fulfill the promises.

7. Be very careful about designating only one of the children as executor. This will often be viewed as favoritism. At least talk to them about it. Yes, it’s a bit cumbersome to have more than one executor — but the extra effort may be worth it if it saves a family relationship.

8. Don’t try to “do it yourself.” Poorly written documents with ambiguities and mistakes are sure to cause trouble. Seek competent counsel.

9. If one of your children has special needs — make a plan. Don’t expect his or her siblings to pick up your burden unless they have agreed to. Investigate the options and make sure the finances are dealt with appropriately.

And there you have it, folks. Protect your family from the potential greed mongers.

Read more related articles at:

How to Deal With Greedy Family Members After a Death

This Is How You Keep Family Members from Disputing a Will

Also, read one of our previous Blogs at:

How Do You Stop Family Fights Over an Inheritance?

Click here to check out our On Demand Video about Estate Planning.

 

contesting a Will

What Are the Grounds for Contesting a Will?

What Are the Grounds for Contesting a Will?

Ignoring State Law, Lack of Capacity, Undue Influence, and Fraud

You can’t challenge or contest a will simply because you don’t like its terms. There are four legal reasons for a will contest in most states, and it can be very difficult to prove any one of them. That translates to a great deal of expense in many cases, from attorney’s and expert’s fees to court fees. But if one of these four reasons for a contest does exist, a last will and testament can be invalidated.

It’s not a matter of invalidating just one provision. The entire will is effectively thrown out, and the estate proceeds as though the decedent had never left a will at all.

 

The Will Wasn’t Signed in Accordance With Applicable State Laws

Each state has very specific laws governing how a last will and testament must be signed. For example, the will must be signed by the testator—the person who created and is leaving the will—in the presence and hearing of at least two witnesses in Florida. The testator and the witnesses must be in the same room at the same time, and each must sign the will while the others are watching.

It’s easy to assume that a will that’s executed in an estate lawyer’s office will be signed with the proper legal formalities, but this isn’t always the case. Failing to sign a will in accordance with applicable state laws is the first and foremost reason why a will is contested, and it’s also the most common reason why a will is found to be invalid.

The Testator Lacked Testamentary Capacity to Sign a Will

“Testamentary capacity” means that the testator understands the nature and value of her “bounty” or assets and that she understands the natural objects of that bounty—who should logically inherit her assets. She must understand the legal effect of signing a will.

State laws dictate the threshold that must be overcome to prove that a testator lacked testamentary capacity, and the bar isn’t usually set very high. For example, a person can show signs of dementia in some states yet still be considered to have the testamentary capacity to sign a will.2 She understands the necessary details, even if her memory and mind are slipping in other areas.

The testimony of the witnesses to the will signing becomes crucial in cases such as this. Absent a doctor’s visit or an adjudication of incapacity within days of the will signing, lack of testamentary capacity is very difficult to prove.

The Testator Was Unduly Influenced

People tend to become weaker both physically and mentally as they age, and this can make them more susceptible to the influence of others. The key to undue influence in the context of a will contest is this: Did the alleged influencer exert such extreme pressure and put the testator under such severe duress that it caused him to lose his free will and instead succumb to the will of the influencer?

Mere nagging, threats, and verbal abuse aren’t enough to establish undue influence. Proving it typically involves actions such as consulting with the testator’s attorney regarding the provisions of the will, paying for the will, and isolating the testator from his family and friends.

As with lack of testamentary capacity, undue influence is very difficult to prove.

The Will Was Procured by Fraud

A will procured by fraud is one that the testator is tricked into signing. For example, the testator might be presented with a document and told that it’s a deed or a power of attorney. She therefore signs it, but it turns out that the document is a will. The will is therefore procured by fraud.

This tends to go hand-in-hand with testamentary capacity because most people would review the document, at least to some extent, before signing. But fraud is nonetheless a separate ground for a contest.

The problem with proving that a will was procured by fraud is that the testator can’t be questioned about what he thought he was signing, and this is where state laws come into to play. The witnesses must be asked what they thought the testator was signing.

The will might be declared invalid if the testimony of the witnesses doesn’t add up, but more likely because it wasn’t signed properly, not necessarily because it was procured by fraud.

Read more related articles at:

Where There’s a Will …

Also, read one of our previous Blogs at:

Can I Prevent a Will Contest After I’m Gone?

Click here to check out our On Demand Video about Estate Planning.

 

protect trust

Act Quickly to Protect an Estate

Act Quickly to Protect an Estate

For most families, the process of estate administration or the probate of a will starts weeks after the death of a loved one.  However, before that time, there are certain steps that need to be taken immediately after death, according to a recent article “Protecting an estate requires swift action” from The Record-Courier. It is not always easy to keep a clear head and stay on top of these tasks but pushing them aside could lead to serious losses and possible liability.

The first step is to secure the deceased’s home, cars and personal property. The residence needs to be locked to prevent unauthorized access. It may be wise to bring in a locksmith, so that anyone who had been given keys in the past will not be able to go into the house. Cars should be parked inside garages and any personal property needs to be securely stored in the home. Nothing should be moved until the trust administration or probate has been completed. Access to the deceased’s digital assets and devices also need to be secured.

Mail needs to be collected and retrieved to prevent the risk of unauthorized removal of mail and identity theft. If there is no easy access to the mailbox, the post office needs to be notified, so mail can be forwarded to an authorized person’s address.

Estate planning documents need to be located and kept in a safe place. The person who has been named as the executor in the will needs to have those documents. If there are no estate planning documents or if they cannot be located, the family will need to work with an estate planning attorney. The estate may be subjected to a probate proceeding.

One of the responsibilities that most executors don’t know about, is that when a person dies, their will needs to be admitted to the court, regardless whether they had trusts. If the deceased left a will, the executor or the person who has possession of the will must deliver it to the court clerk. Failing to do so could result in large civil liability.

At least five and as many as ten original death certificates should be obtained. The executor will need them when closing accounts. As soon as possible, banks, financial institutions, credit card companies, pension plans, insurance companies and others need to be notified of the person’s passing. The Social Security Administration needs to be notified, so direct deposits are not sent to the person’s bank account. Depending on the timing of the death, these deposits may need to be returned. The same is true if the deceased was a veteran—the Veteran’s Affairs (VA) need to be notified. There may be funeral benefits or survivor benefits available.

It is necessary, even in a time of grief, to protect a loved one’s estate in a timely and thorough manner. Your estate planning attorney will be able to help through this process.

Reference: The Record-Courier (Oct. 17, 2020) “Protecting an estate requires swift action”

Read more related articles at:

Estate Planning Essentials: 8 Steps to Protect Your Family

Best Ways to Protect Your Estate and Inheritances from Taxes

Also, read one of our previous Blogs here:

Share Your Estate Plan Now to Protect Your Family When You Are Gone

Click here to check out our On Demand Video about Estate Planning.

digital assets

WHY YOUR DIGITAL ASSETS NEED A PLACE IN YOUR ESTATE PLAN!

 

As the world goes increasingly digital, many of us have amassed sometimes large collections of non-physical assets such as digital photos, music, movies, eBooks, cryptocurrencies and more on our computers, smartphones, portable media players, hard drives and other devices. Although they are in an electronic format, these assets often have personal or financial value, which can make them part of your estate. And that means they should be included in your estate planning.

What are digital assets?

 Your digital assets are anything of value that exists solely on your digital devices or in your cloud-based storage accounts. In other words, they can be the files or information accessed through or stored on the internet, in on-line accounts and in files stored on your computer. These may include, but are not limited to your:

 

  • digital photos

 

  • electronic subscriptions
  • digital music files

  • eBooks

  • digital commercial movies

  • intellectual property

  • cryptocurrencies

  • digital medical records

  • emails

  • artwork and manuscripts

  • home videos

  • blogs

These assets may have been purchased (e.g., eBooks, music files, Bitcoin) or created by you (e.g. logos, artwork, personal photos, manuscripts).

What is digital asset estate planning?

 Digital asset estate planning recognizes digital assets as a property right and addresses the process of cataloging, organizing, accessing and planning for the disposition of these non-traditional assets after death or incapacitation.[1]

Are online banking and brokerage accounts digital assets?

No. While these accounts may be online, the assets held in these accounts are not considered digital assets.

Why is it important to include digital assets in estate planning?

Before we lived in a digital world, bequeathing one’s assets was often simpler. Let’s say you wanted to leave a valuable album collection to a nephew who shares your taste in jazz. You could stipulate in your will that your albums get physically passed along to that nephew.

But imagine that you purchased all those albums digitally, and they live on a hard drive or in your personal computer, along with other digital assets you also want to bequeath. How do you ensure that the right beneficiaries get the specific assets you want them to have? Digital estate planning provides a way to organize those assets, a means for a designated person to access them after your death or incapacity and a path for their disposition.

Can’t I just give my passwords to my heirs so they can access my digital assets?

 You may be able to if the assets you own (such as photos or manuscripts) are on your personal devices. If your loved ones get along well with each other, everything may be disbursed just as you intended. However, if there could be any questions about what goes to whom, it’s always best to get your wishes legally documented.

What’s more, when it comes to online accounts, giving out your personal information, such as your user names and passwords, to allow someone else to access them may not be legal, depending on the Terms of Service of the website and various state and federal laws. And without proper planning, the company may not be required to provide anyone else with access to the site.

I see your point. So what should I do next?

Over 40 states have now put in place a legal framework that allows the user of a website to control the access to and disposition of digital assets. To help make sure you’re complying with a governing statute in your state, you’ll first want to create an inventory of all your digital assets. Use the list provided above as a starting point. If you have digital assets that are valuable, whether sentimentally or financially, you’ll need to make decisions on who will get access to them should you die or become incapacitated and how and to whom they should be passed along.

Next you should consult with an estate planning lawyer. Bring up your specific wishes on how and to whom you want those assets distributed. You’ll also need to make it clear how your loved ones and/or the personal representative of your estate will gain access to your digital assets if you die or become incapacitated. It’s important to make sure you have a plan in place that complies with the statute in your state that addresses this unique form of assets.

At Modera, we take into consideration a wide range of issues in our clients’ financial world, offering guidance and support for issues you bring to us, and for those you might not have yet thought of. We also can work closely with your other financial advisors, such as your attorney and your CPA, as well as your loved ones, to help see that your financial life is going according to plan. If you’d like to discuss this or any other financial topic that interests you, please get in touch.

Read more related articles at:

Estate planning for the digital era

Estate planning for digital assets

Also, read one of our previous Blogs at:

Digital Assets Need to Be Protected In Estate Plans

Click here to check out our On Demand Video about Estate Planning.

 

What Happens During the Probate Process?

What Happens During the Probate Process? The steps of probate are similar, even if there is no will. Probate is the court-supervised process of authenticating a last will and testament if the deceased made one. It includes locating and determining the value of the person’s assets, paying their final bills and taxes, and distributing the remainder of the estate to their rightful beneficiaries.

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Each state has specific laws in place to determine what is required to probate an estate. These laws are included in the estate’s “probate codes,” as well as laws for “intestate succession,” when someone dies without a will.

 

Authenticating the Last Will and Testament

Most states have laws in place that require anyone who is in possession of the deceased’s will to file it with the probate court as soon as is reasonably possible. An application or petition to open probate of the estate is usually done at the same time. Sometimes it’s necessary to file the death certificate as well, along with the will and the petition.

Completing and submitting the petition doesn’t have to be a daunting challenge. Many state courts provide forms for this.

If the decedent left a will, the probate judge will confirm it is valid. This may involve a court hearing, and notice of the hearing must be given to all the beneficiaries listed in the will as well as the heirs—those who would inherit by law if no will existed.

The hearing gives all concerned an opportunity to object to the will being admitted for probate—maybe because it’s not drafted properly or because someone is in possession of a more recent will. Someone might also object to the appointment of the executor nominated in the will to handle the estate.

To determine if the submitted will is the real deal, the court relies on witnesses. Many wills include so-called “self-proving affidavits” in which the decedent and witnesses sign an affidavit at the same time the will is signed and witnessed. This is good enough for the court.

Lacking this, however, one or more of the will’s witnesses might be required to sign a sworn statement or testify in court that they watched the decedent sign the will and that the will in question is indeed the one they saw signed.

 

Appointing the Executor or a Personal Representative

The judge will appoint an executor as well, also sometimes called a personal representative or administrator. This individual will oversee the probate process and settle the estate.

The decedent’s choice for an executor is typically included in the will. The court will appoint next of kin if they didn’t leave a will—typically the surviving spouse or an adult child. This individual isn’t obligated to serve. They can decline and the court will then appoint someone else.

The appointed executor will receive “letters testamentary” from the court—a fancy, legal way of saying they’ll receive documentation allowing them to act and enter into transactions on behalf of the estate. This documentation is sometimes referred to as “letters of authority” or “letters of administration.”

 

Posting Bond

It might be necessary for the executor to post bond before they can accept the letters and act for the estate, although some wills include provisions stating this isn’t necessary.

Bond acts as an insurance policy that will kick in to reimburse the estate in the event the executor commits some grievous error—either intentionally or unintentionally—that financially damages the estate, and, by extension, its beneficiaries.

Beneficiaries can elect to unanimously reject the bond requirement in some states, but it’s an ironclad rule in others, particularly if the executor ends up being someone other than the individual nominated in the will or if they live out of state.

 

Locating the Decedent’s Assets

The executor’s first task involves locating and taking possession of all the decedent’s assets so they can protect them during the probate process. This can involve a fair bit of time and sleuthing. Some people own assets they’ve told no one about, even their spouses, and these assets might not be delineated in their wills.

The executor must hunt for any hidden assets, typically through a review of insurance policies, tax returns, and other documentation.

In the case of real estate, the executor is not expected to move into the residence or the building and remain there throughout the probate process to “protect” it. But they must ensure property taxes are paid, insurance is kept current, and any mortgage payments are made to prevent foreclosure so the property isn’t lost.

The executor might literally take possession of other assets, however, such as collectibles or even vehicles, placing them in a safe location. They’ll collect all statements and other documentation concerning bank and investment accounts, as well as stocks and bonds.

 

Determining Date of Death Values

Date of death values for the decedent’s assets must be determined and this is generally accomplished through account statements and appraisals. The court will appoint appraisers in some states, but in others, the executor can choose someone.

Many states require that the executor submit a written report to the court, listing everything the decedent owned along with each asset’s value, as well as a notation as to how that value was arrived at.

 

Identifying and Notifying Creditors

The descendant’s creditors must be identified and notified of the death. Most states require the executor to publish notice of the death in a local newspaper to alert unknown creditors.

Creditors typically have a limited period of time after receiving the notice to make claims against the estate for any money owed. The exact time period can vary by state.

The executor can reject claims if they have reason to believe they’re not valid. The creditor might then petition the court to have a probate judge decide whether the claim should be paid.

 

Paying the Decedent’s Debts

Valid creditor claims are then paid. The executor will use estate funds to pay all the decedent’s debts and final bills, including those that might have been incurred during the final illness.

 

Preparing and Filing Tax Returns

The executor will file the decedent’s final personal income tax returns for the year they died. They’ll determine if the estate is liable for any estate taxes, and, if so, file these tax returns as well. Any taxes due are also paid from estate funds.

This can sometimes require liquidating assets to raise the money.  Estate taxes are usually due within nine months of the decedent’s date of death.

 

Distributing the Estate

When all these steps have been completed, the executor can petition the court for permission to distribute what is left of the decedent’s assets to the beneficiaries named in the will. This usually requires the court’s permission, which is typically only granted after the executor has submitted a complete accounting of every financial transaction they’ve engaged in throughout the probate process.

Some states allow the estate’s beneficiaries to collectively waive this accounting requirement if they’re all in agreement that it’s not necessary.11 Otherwise, the executor will have to list and explain each and every expense paid and all income earned by the estate. Some states provide forms to make this process a little easier.

If the will includes bequests to minors, the executor might also be responsible for setting up a trust to accept possession of these bequests because minors can’t own their own property.

In other cases and with adult beneficiaries, deeds and other transfer documents must be drawn up and filed with the appropriate state or county officials to finalize the bequests.

 

“Intestate” Estates

An intestate estate is one where the decedent did not leave a valid will—either they never made one or the will is not accepted as valid by the probate court due to an error in the document or because an heir successfully contested it.

The most significant difference is that in the absence of a will that makes their wishes known, the decedent’s property will pass to the closest relatives in an order determined by state law.

Read more related articles at:

Florida Probate

What Is Probate, and How Does It Work?

Also, read one of our previous Blogs at:

Avoiding Probate in Florida

Click here to check out our On Demand Video about Estate Planning.

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