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anna nicole smith

Five Ways to Avoid Anna Nicole’s Estate Drama

Five Ways to Avoid Anna Nicole’s Estate Drama

Don’t leave behind a legal mess others will have to sort out for you.

Five Ways to Avoid Anna Nicole’s Estate Drama. Now that Anna Nicole Smith’s former boyfriend, Larry Birkhead, is raising their daughter, Dannielynn, you can expect the legal disputes surrounding Smith’s death to melt away like snow in the Bahamas, right?

Joke, people.

In fact, Smith left behind enough unanswered questions and competing interests to keep lawyers wrangling into the next decade. The Playboy centerfold and widow of oil tycoon J. Howard Marshall II died in February 2007 at age 39 of a drug overdose, leaving behind her baby, three would-be daddies and a drawn out lawsuit for a share of her late husband’s fortune. DNA tests showed Birkhead, a photographer, to be Dannielynn’s father; Howard K. Stern, another paternity contender, was named executor of Smith’s will, and Smith’s mother is battling Birkhead for guardianship rights. Smith’s son and only beneficiary, Daniel, died of a drug overdose a few months before his mother.

What can we learn from all this drama? If you must live a messy life, clean your financial affairs up before you depart it. Here are five tips for tidying up your estate so that others don’t have to.

1. Plan for contingencies. Smith’s will, written in 2001, left whatever property she had in trust for her son. It specifically excluded unknown children, a provision that’s more commonly used by men to protect against claims by heirs they’re not aware of. Had Daniel not died before Smith, Dannielynn would have been out in the cold — a development Smith probably would not have intended, says Joanna Grossman, a law professor at Hofstra University. “She was probably just thinking of her one son and wanted him to have everything.” Instead, his death caused the will to lapse. With no will, state intestacy law made Dannielynn sole heir, a determination later affirmed by the court.

2. Appoint a guardian. Although Birkhead’s situation has yet to be resolved (the final custody hearing will be held in June in the Bahamas), he has a big leg up in his custody dispute. It’s the biological or adoptive parent who generally gets custody of the children if the other parent dies. Still, you should name a guardian in your will in case the other parent isn’t available or you both die around the same time. Think that can’t happen to two relatively young people in a single family? Look at Smith and her son.

If you’re convinced that the other parent is unfit for custody, name another guardian, outline your reasoning and hope that the court agrees. Simply saying you prefer someone else doesn’t cut it, says Grossman. “If there is a real live parent who has legal rights, your preference is not going to trump that.” Because Birkhead passed both the DNA and fitness tests, says Grossman, “there’s no justification for taking the child away.”

3. Design your own funeral. Sure, you could leave the arrangements to your next of kin and leave it to them to argue over the details. Smith’s mother, for instance, wanted to bury her in the family plot in Texas; instead, Dannielynn was awarded custody of the body, and Richard C. Milstein, Dannielynn’s representative, had Smith buried in the Bahamas. You can avoid the bickering by putting your funeral instructions in writing, preferably in a living will, which is more readily available to survivors than a regular will, says Martin Shenkman, an estate-planning lawyer in Teaneck, N.J. Have a lawyer write or review the document to make sure the terms are legally enforceable. And include the same instructions in your testamentary will, giving your executor the authority to cover funeral expenses out of the estate.

4. Legalize your love. Getting married for estate-planning purposes hardly constitutes a Hallmark moment, but it does entitle your surviving spouse to half the property you acquire during your marriage or to a significant share of your estate, depending on where you legally reside. You can’t easily override those rights, in a will or otherwise, although your spouse can waive them. For Stern, a marriage license would have meant inheriting some of Smith’s estate; as the boyfriend, he gets zip.

What if you’re in a same-sex partnership? A number of states accord domestic partners some or all of the same protections as married couples; Massachusetts and California recognize same-sex marriages. No matter what your state or status, you can always name a loved one as beneficiary in your will.

5. Tie up loose ends. Ironically, Stern has since been appointed executor of Smith’s estate, as well as a cotrustee, with one-time rival Birkhead of a trust set up for Dannielynn’s benefit. Before you start enjoying that soap opera, make sure your own legal arrangements avoid potential conflicts. “Don’t assume that it’s just Hollywood types who have these issues,” says Shenkman. “A lot of people have messy personal lives.”

Read more related articles at:

Who will get Anna Nicole Smith’s money?

Judge In Decades Old Anna Nicole Smith Case Announces He’s Had Enough

Also, read one of our previous blogs at:

What’s the Latest on Britney Spears’ Conservatorship?

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

Elder Law

Elder Law Can Be Scary, But It Doesn’t Have To Be!

Elder Law Can Be Scary, But It Doesn’t Have To Be!

Aging is something we all must go through. As our bodies and minds decline, so do our decision-making powers. Unfortunately, some of us can become incapacitated and no longer be able to make decisions for ourselves. This is a difficult situation for both us, and our loved ones. There may come a time when you need an Elder Law Attorney.

Elder law is another aspect of estate planning, focusing primarily on the needs of families and individuals as they age. Issues of aging include senior housing and home care, long-term (or nursing home) care, guardianships and health care documents, Medicare, and Medicaid.

Planning to protect your nest egg for when, not if, a long-term care event strikes your family may make all the difference in the world when it comes to your ability to leave a Legacy. With a dedicated team and trusted legal counsel, Legacy Planning Law Group knows that the best way to help our clients is to understand their planning needs.

Click here for more information from our website about Elder Law:

https://www.legacyplanninglawgroup.com/elder-law/

Here is also an article that explains elder Law in detail:

What Is Elder Law?

We are here to help you with all your Elder Law needs. We are compassionate, understanding, and empathetic to your needs because we know what it is like to go through this process.

If you are in need of an Elder Law Attorney, or if you are ready to plan for your future, we would love the opportunity to help.

Call us at 904-880-5554 or Book a call here:

https://www.legacyplanninglawgroup.com/book-a-call/

Where you can choose a day and time that is convenient for you.

Also, read one of our previous blogs here:

5 SMART TIPS FOR HIRING AN ELDER LAW ATTORNEY

Don’t wait until it is too late, and it is harder for your loved ones to now give you the loving care you gave them.

Be proactive, plan ahead. Aging is inevitable, why not do it intelligently and gracefully.

 

Avoid Probate

Did you know? You Can Avoid the Blood-Sucking Probate Process!

Did you know? You Can Avoid the Blood-Sucking Probate Process!

What Is Probate?

 Probate is the legal process of administering a person’s estate after their death. If you have a last Will and Testament, probate will involve proving that your Will is legally valid, executing your instructions and paying applicable taxes.

Having a clearly written Will is one way to make the probate process easier on your loved ones. After all, your Will doesn’t only specify who should inherit what. It also designates who you’d like to take care of your kids if both parents were to pass away, plus the executor who should fulfill the instructions in your Will.

If you die without a Will, the probate court will rely on your state’s intestate laws to figure out how to distribute the person’s belongings, or inheritance.

Click here for more information about Florida Intestate Law:

https://www.nolo.com/legal-encyclopedia/intestate-succession-florida.html

What’s Included in Probate Costs?

How much probate costs really depends on the estate size, the state you live in, and how much legal work is needed during the probate process.

Here are a few items that definitely come with a price tag:

  • Executor Compensation – Carrying out these duties is not a simple job. The executor or personal representative will be paid from the estate for their services. Usually, each state has a certain percentage (like 5% of the estate value) and some other minimums for compensation.
  • Probate Bond (aka Executor Bond or Fiduciary Bond) – Some states require this expense unless the will specifically says not to get it. The bond company normally charges a percentage of the amount of the bond. For instance, if their premium was 0.5%, a bond of $500,000 would cost $2,500.
  • Court Filing Fees – Each state (and county) has its own filing fee amount, so the exact amount will depend on where probate is filed.
  • Attorney Fees – Some states say an attorney must handle the probate process., Florida is one of tem.
  • Creditor Notice Fees – It’ll cost a bit to put up notices in local newspapers and other forms of communication to alert beneficiaries and creditors about the death.

How can you avoid Probate?

A living trust can help you avoid probate. If your assets are placed in a trust, you do not “own” them: the trustee of the trust does. You control the assets as if they were yours. … Since you do not “own” the trust property, it will not have to go through probate.

To learn more about How a Revocable Living Trust Avoids Probate, click here:

https://www.thebalance.com/how-does-a-revocable-living-trust-avoid-probate-3505224

At Legacy Planning Law Group, we specialize in Wills and Trusts.

Our Attorney Bill O’Leary has over 20 years of exclusive Estate Planning experience. No matter how extravagant or how modest your Estate is, you have one, and without a Will or Trust, you will have to go through the full Probate process, which can be costly and very timely. And this will all come at a time of mourning and greiving which tends to make the simplest tasks more difficult.

Let our experienced Attorney Bill O’Leary help you decide what Estate Plan is best for you now.

Call us today at 904-880-5554 to speak with someone about your personalized situation.

We can set up a time for you to meet with Bill, where he will explain in extreme detail all your options and make recommendations to fit your own unique situation.

Don’t have time to call? Then click here and set up a complimentary 15-minute phone call on a day and time you choose, that is most convenient for you:

https://www.legacyplanninglawgroup.com/book-a-call/

Visit our Website and see what we are all about:

https://www.legacyplanninglawgroup.com/

Want to watch/hear some true-life probate horror stories?

Sign up and view our Webinar at:

https://www.legacyplanninglawgroup.com/webinar-registration/

Do not delay in getting your affairs in order. Let us help you “Avoid the Blood Sucking Probate Process”!

Child support arrears

Child Support Arrears and Estate Recovery

Child Support Arrears and Estate Recovery

In a recent case out of Ohio, a court of appeals analyzed whether the state could recover child support arrears from the estate of a Medicaid recipient. Here, Betty was the legal guardian of her grandchildren, Emily and Bradley. Their father was under court order to pay child support, with Betty as obligee. After both children reached the age of majority, Betty died intestate.

In the probate case, the state filed to recover the amount expended upon Betty during her life. The only asset of the estate was the intangible personal property of the child support arrears. Emily filed an Exception to the Inventory, claiming that the child support arrearages were her personal property and not an asset of the estate. After a hearing on the matter, the trial court ruled that since Betty was the obligee and the amount owed was reduced to a judgement, the arrearages were a party of Betty’s estate.

Emily appealed, arguing that the arrearages were not reduced to judgment before Betty’s death and that she had a superior claim to the money. Emily’s arguments relied heavily on In re Estate of Antkowiak, 95 Ohio App. 3d 546 (6th Dist. 1994). In that case, the court ruled “the existence of a child support arrearage upon the beneficiary’s emancipation and the death of a custodial parent establishes a prima facie case that the emancipated child has been denied the standard of living to which he or she was entitled…he or she has a superior claim to the arrearages. * * * [T]he right to collect support arrearages passes directly to the emancipated beneficiary upon the death of the custodial parent.” However, in that case, the court was clear that this ruling applied only to child support arrearages that had not been reduced to judgment prior to the obligee’s death.

The appeals court here held that Antkowiak was a narrow ruling and most courts do not rely on that precedence. Instead, most courts rely on the general rule that the child was not denied the standard of living to which she was entitled. Rather, the obligee assumed an additional burden when child support wasn’t received, and so that money is owed to them, and subsequently, their estate.

The state argued that since Ohio has expanded estate recovery, whether the arrearages are included in Betty’s probate estate is inconsequential. The court agreed, citing the definition of “estate” in R.C. 5162.21(A)(1):

“(a) All real and personal property and other asserts to be administered under Title XXI of the Revised Code and property that would be administered under that title if not for section 2113.03 or 2113.031 of the Revised Code; (b) Any other real and personal property and other assets in which an individual had any legal title or interest at the time of death (to the extent of the interest), including assets conveyed to a survivor, heir, or assign of the individual through joint tenancy, tenancy in common, survivorship, life estate, living trust, or other arrangement.”  (emphasis added)

In the end, the court confirmed that the trial court was correct when it declined to apply the Antkowiak ruling to the case. The arrearages were Betty’s property and not Emily’s property. And because the state has expanded estate recovery, it was not determinate to decide whether the arrearages were a part of the estate or not. The judgment was affirmed.

Read more related articles at:

Larry King Will

Larry King and the Holographic Will

Larry King and the Holographic Will

Larry King passed away in January due to complications with COVID-19. At the time, he was in the middle of a divorce from his seventh wife, Shawn. His net worth is estimated to be some $144 million. Shawn has been adamant that the pair have had an estate plan in place for many years. However, last month, a holographic will was found.

A holographic will is one that is handwritten by the Testator. Some states do not allow for such wills, but in states that do, many of the traditional execution requirements are relaxed, such as not requiring a notary or witnesses. In California, Larry’s presumed domicile, holographic wills are allowed. To be valid, the holographic will must be in the Testator’s own handwriting and signed and dated by the Testator. And, of course, the Testator must be of age and of sound mind.

Larry’s holographic will basically cut Shawn out. It stated: “In the event of my death, any day after the above date I want 100% of my funds to be divided equally among my children Andy, Chaia, Lary Jr (sic) Chance & Cannon.” Andy and Chaia both passed away in 2020.

Shawn is contesting the holographic will. She says that her and Larry had a good relationship, even after the divorce filing. She said that they talked every day. She also claims that Chance and Cannon both support her contest.

Shawn also points to two postnuptial agreements that were presumably drafted to preserve Larry’s estate for Shawn. In addition, she points to the fact that in California, a divorce needs to be finalized before one can revoke a joint estate plan. Since their divorce hadn’t been finalized, their prior estate plan should control.

Will the holographic will be upheld? While this may be battled out in court, a likely scenario is that the estate will attempt to settle with Shawn in the interest of privacy. Notably, only about $2 million of Larry’s estate is subject to the will; other assets were held in trust. Why would Shawn contest the holographic will when it only controls such amount? “It’s the principle,” she said.

Read more related articles at:

Making a Will in the COVID-19 Era

Holographic Will

The 2021 Florida Statutes: PROBATE CODE: INTESTATE SUCCESSION AND WILLS

Also read one of our previous Blogs at:

Click here to check out our On Demand Video about Estate Planning.
dying without heirs

Planning Your Estate When You’ve Got No Children or Heirs

Planning Your Estate When You’ve Got No Children or Heirs

  • Having no heirs or surviving spouse can make estate-planning decisions more difficult.
  • Appropriately directing assets involves naming beneficiaries on financial accounts such as 401(k) plans and life insurance policies.
  • Whom to appoint as a trustworthy health-care proxy or power of attorney is also tricky.

Certified financial planner Mike Keeler has a client, a retired teacher, who saved diligently for her golden years and will leave behind a sizable estate when she passes away. Her estate planning challenge, though, is that she has no children. It’s a situation financial advisors come across frequently: Childless clients who are unsure what should happen to assets they leave behind or whom to appoint as their proxy decision-maker.

“Sometimes there is no close family, and the person doesn’t know who to leave their estate to,” said Keeler, CEO of Peak Financial Solutions. “They also don’t know who to name as executor of their will or who they trust to make decisions for them if they are [incapacitated while still living]. These can be tough decisions.”
Childless investors face unique challenges when making estate and health-care planning decisions. While specific data on estate planning among the childless is hard to come by, studies show that most people fail to put in place even the most basic part of estate planning: a will. For instance, a 2016 Rocket Lawyer study conducted by Harris Poll shows that 64 percent of Americans lack that basic document. The problem with having no will (called dying intestate) is that your state’s court system decides who gets your assets. And on top of property-related considerations are other important estate-planning components, regardless of marital or parental status.

But decisions that can be hard enough for people with family ties or close friends become harder for those without those relationships. When that’s the case, advisors start by encouraging people to focus on their interests and tie them to charitable giving. “I find out what they’re passionate about,” Keeler said. “When they start thinking about the possibilities and the gears start turning in their heads, it can be a fun conversation.”

Keeler’s client, the retired teacher, decided to establish a foundation to award scholarships to college-bound kids who attended the at-risk middle school where she was a teacher. The scholarships will come with certain stipulations, all determined by the client. Keeler encouraged her to immediately establish her legacy so she can enjoy it while still living. The plan, Keeler said, is for the foundation to award its first scholarship this year.

“I told her if you start gifting money now, you get to see the fruits of your labor,” Keeler said. “People don’t have to wait until they’re gone to do this.”

Part of appropriately directing assets involves naming beneficiaries on financial accounts such as 401(k) plans and life insurance policies. Be aware that those accounts do not pass through the will. For instance, if you named your ex-husband as the beneficiary on your 401(k) plan and never updated that information, he will get that money even if your will names your new spouse as your only heir.

An even trickier task than asset considerations can be choosing someone to have medical power of attorney. That designation lets the chosen person make important health-care decisions if you cannot.

Married couples typically name each other as their health-care proxy. But after the death of one party to the marriage, the living spouse with no children faces the challenge of naming someone else. Same goes for childless singles who have never married.

“They might feel like they are putting someone in a really difficult position,” said Justin Halverson, co-founder of Great Waters Financial. “Or they don’t know who they would trust to make such an intimate decision” when it comes to medical-care choices, he said.

Another helpful tool is a living will, which states your wishes if you are on life support or suffer from a terminal condition. This helps guide your proxy’s decision-making.

In addition to a health-care power of attorney, it’s important to give someone durable power of attorney to act as your agent if you become unable to tend to your finances. Advisors say many clients name different people to handle each health-care and financial decision.

Additionally, naming an executor for your estate — regardless of its size — can be challenging.

Doing something is better than doing nothing. Don’t let the fact that you don’t know the perfect way … make you do nothing at all.
Justin Halverson
CO-FOUNDER OF GREAT WATERS FINANCIAL

Sometimes called a personal representative, the executor is the person legally charged with handling your estate. Duties can range from filing a will with the court to selling your house, paying your debts and distributing assets as directed.

That individual will be asked to take on the responsibility no matter what else is going on in his or her life. This should be someone you not only trust, but a person with the capacity to handle the responsibility.

Halverson said that if you struggle with naming someone, it’s worth talking to your bank’s trust division to explore naming the bank as executor or setting up a trust. Be aware that while family members or friends typically serve as executor for free, banks will charge a fee.

The good news is that once you make these decisions, you don’t have to think about your estate plan too often. Advisors say you should check it every three to five years unless you face a major life change.

“The important thing is to document what you want to happen and review it periodically,” said CFP Kevin Meehan, regional president of Wealth Enhancement Group. “Relationships with people and charities can change.”

For instance, one of Meehan’s clients initially planned to leave a good chunk of her assets to nieces and nephews. But, he said, she recently changed her will.

“That relationship has changed over time, and as [the nieces and nephews] are less interested in her, she’s become less interested in giving her assets to them,” Meehan said.

While estate planning might be about as appealing as a root canal, advisors say that putting a plan in place gives you control that you otherwise won’t have.

“Doing something is better than doing nothing,” said Halverson of Great Waters Financial. “Don’t let the fact that you don’t know the perfect way to do [an estate plan] make you do nothing at all.”

— By Sarah O’Brien, special to CNBC.com

Read more related articles at:

My husband and I don’t have kids, so we asked ourselves 10 questions to decide who to include in our will

Estate Planning with No Heirs: It’s Still Important

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.

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 the most? 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

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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.

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