Can You Probate Your Will Before You Die?

Apr 09, 2014  /  By: Barton P. Levine, Esq.  /  Category: Estate Planning, Probate, Wills

Probating your Will before your death often makes practical sense. By pre-probating your Will, you can avoid confusion about your Will, including whether it is your most recent Will and if you actually died with a written Will. You do not have to keep track of your Will and do not have to provide multiple sets of instructions to your loved ones about where they should keep your Will. If you can probate your Will before your death, your county clerk’s office or county recorder can index and record it for public retrieval. Not all county recorders, probate courts, or circuit courts (names for courts vary by jurisdiction) can probate your Will before you die. If your local rules allow you to pre-probate or register your will before your death, you may want to ask your probate attorney to do so or speak with he or she as to whether it is a good idea. If you draft a will, but your relatives or executor cannot locate it, you may be subject to your state’s intestacy statute. This means that the heirs to your estate are not established by your will. Instead, the succession laws applicable in your state establish them.

Even if you can probate your Will before you die, you should let your heirs know so that your Will directs or controls your testamentary intent, instead of the state intestacy statute.

The Law Offices of Barton P. Levine is a member of the American Academy of Estate Planning Attorneys.

Why You Need to Avoid Ambiguity in a Last Will and Testament

Apr 08, 2014  /  By: Barton P. Levine, Esq.  /  Category: Estate Planning

An estate plan can be an elaborate set of legal documents or it can be as simple as a Last Will and Testament. In all estate plans, however, a Will is where it all starts. Your Will provides the basic framework and guidance for the way in which you want your estate handled upon your death. For this reason, you must be certain that you have not included any ambiguous terms in your Will that will cause your entire estate plan to become the subject of a long, drawn out estate battle. Not only will this hold up all of your estate assets for months, even years, but it will costs your estate a considerable amount of money in legal fees. Ambiguous terms in a Will can be found in almost any part of the Will, including the following:

  • Specific bequests – failing to describe the item with specificity so that a court is clear on what you are gifting. For example, using “my grandmother’s lamp” when no one is certain which lamp belonged to your grandmother
  • Specific bequests – failing to identify the person to whom you wish to make the gift with specificity. For example, using “my grandson” when you have more than one.
  • Residual clause – This is where the remainder of your estate is handled after specific bequests have been honored. Failing to name the beneficiaries with clarity can cause a problem. For example, saying “my heirs” may not be sufficient.
  • Residual clause – Failing to be clear about how much of the estate will go to each beneficiary.

Avoiding ambiguity is simple when you consult with an estate planning attorney. Although using a generic form may seem like a great money saver, in the long run it may cost your estate and your beneficiaries considerably more money than you saved.

The Law Offices of Barton P. Levine is a member of the American Academy of Estate Planning Attorneys.

Beware of Offshore Accounts

Apr 05, 2014  /  By: Barton P. Levine, Esq.  /  Category: Estate Planning

Years ago, sheltering money from taxes, creditors and even spouses by placing it in off shore accounts was a common practice for United States citizens. Times have changed though, and the U.S. government has really cracked down on loopholes that were used to avoid the payment of debts and taxes, including the offshore account tactic.

Despite changes in the laws relating to banking and taxes that all but make offshore accounts the thing of the past, unscrupulous companies continue to try and lure investors into transferring money into offshore accounts. This is one of those situations that falls into the “if it sounds too good to be true, then it probably is”. Advertisements abound by planners that claim they can set up accounts or trusts that will shelter money from U.S. taxes, creditors and even from current spouses or ex-spouses in the event of a divorce. While this sounds attractive, the asset protection an investor is looking for could actually land him or her in jail. At a bare minimum, the funds placed in those accounts will likely still be accessible by the U.S government and most courts. In some cases, the investor could be accused of outright fraud.

Before you become a victim, or worse a criminal, sit down and talk to your estate planning attorney. If there is a legal way to protect your assets from taxes or creditors, your estate planning attorney can help you do it without the risks involved in trusting a planner you don’t know.

The Law Offices of Barton P. Levine is a member of the American Academy of Estate Planning Attorneys.

Charitable Giving – Steps to Choosing and Including the Right Charities in Your Estate Plan

Apr 05, 2014  /  By: Barton P. Levine, Esq.  /  Category: Estate Planning

For many people, charitable giving is an important part of an estate plan. Choosing which charities to include in your estate plan, how to include them, and how much to give though can be a difficult process. According to the National Center for Charitable Statistics, there are over one million public charitable organizations in the United States alone.

If you already support a local charity, then you are ahead of the game. If you are still trying to decide which charities interest you, you may be able to narrow down your search by searching websites like charitywatch.org. Once you have chosen some possible candidates, make sure that the IRS recognizes the charities to ensure that your gifts will be tax deductible. You can check for IRS recognition using the Exempt Organization Select Check. Finally, you will likely want to look into how your gift will be used. What percentage of your gift actually goes to help your charity and how much is spent on administrative costs? Is your charity financially stable? Questions like these can be answered by looking up the charity on Charity Navigator.

Once you have decided on a charity or charities, sit down with your estate planning attorney and decide how you want to include your chosen charity in your estate plan. You may opt for a direct gift in your Last Will and Testament or you may want to create a trust that will provide continued giving long after you are gone.

The Law Offices of Barton P. Levine is a member of the American Academy of Estate Planning Attorneys.

Estate Planning for the Blended Family

Apr 04, 2014  /  By: Barton P. Levine, Esq.  /  Category: Estate Planning

A second or subsequent marriage often means that two families now become one. The period of adjustment that often accompanies a new marriage can leave both spouses a bit exhausted. Be sure that in the midst of all the other issues and concerns that you must address that you don’t forget some important estate planning considerations such as:

Obligations to a former spouse – a previous divorce decree may require you or your new spouse to pay child support. Alimony as well as could require maintenance of a life insurance policy. Failing to fulfill these obligations could give a former spouse a claim on the estate.

Beneficiary designations –people often forget that they made a former spouse a beneficiary on an old life insurance policy or retirement account. Now is the time to dig those out and change them.

Fiduciaries – You, or your new spouse, may also have made a former spouse, an executor, trustee, or agent in a power of attorney—designations that should be changed. If you designated an adult child in one of these roles, you may also wish to change that to a neutral third party now that you are part of a blended family.

Last Will and Testament – people often make the mistake of using a do-it-yourself Will and simply gifting everything to a spouse, and if the spouse is not alive to the children. Now that you are re-married though, this could mean that everything goes to your new spouse and then you have to count on he or she to leave assets to your children from a previous marriage upon death.

The Law Offices of Barton P. Levine is a member of the American Academy of Estate Planning Attorneys.

Why an Independent Trustee May Be a Better Choice

Apr 02, 2014  /  By: Barton P. Levine, Esq.  /  Category: Estate Planning

When it comes time to create an estate plan, many people choose to include much more than a simple Last Will and Testament. One common additional beyond a simple Will is a trust. One benefit to a trust is that it can be as simple, or as complex, as you need it to be. Regardless of how detailed your trust is, however, you will need to appoint a trustee. Although it may not be your fist thought, you should think about appointing a neutral, independent trustee.

Most people immediately think of appointing a spouse, parent, or adult child as the trustee of their trust. Appointing a family member may seem like the obvious choice; however, it can create more problems than it solves in the long run. People tend to choose a family member because they want to keep control of assets in the family or because they feel a family member can better understand family dynamics. While these may be valid points, there are other things to consider as well.

Being the trustee of a trust is typically a complicated and time consuming job. It usually requires a significant amount of experience and knowledge of both financial and legal matters – knowledge that a family member may not have. If your trustee makes even a simple, inadvertent mistake, he or she could be personally liable and trust assets could be forever lost. Furthermore, other family members may resent the appointment and the perceived control the trustee has over them if they are beneficiaries. In the end, it often makes more sense to appoint an independent trustee who has the requisite experience and knowledge to carry out the job well. Ask your estate planning attorney for recommendations for independent, professional trustees in your area.

The Law Offices of Barton P. Levine is a member of the American Academy of Estate Planning Attorneys.

Is It Time for a Family Meeting about Estate Planning?

Apr 01, 2014  /  By: Barton P. Levine, Esq.  /  Category: Estate Planning

Estate planning is one of those things that people often put off. There are numerous reasons why people procrastinate; however, it frequently boils down to the simple fact that people don’t want to think about their own death. If you are one of the minority who has actually taken the time to create a comprehensive estate plan then you are to be congratulated – but don’t stop there. Isn’t it time to sit down for a family meeting and discuss your plan?

From a legal standpoint, a well-drafted estate plan should take care of important end of life issues such as long term care, medical decisions, and divisions of assets after death. What happens though, if you never share your estate plan with your loved ones? From an emotional standpoint, what often happens is that you add another layer of stress or confusion to an already emotional time for your loved ones. If you get sick, how does your family know who is supposed to be in charge of your financial matters, much less you if they have no idea what your estate plan says?

The point here is that once you have taken the time to create an estate plan, consider sitting down with your spouse, children, or both and discuss the plan. You may wish to do so with your estate planning attorney in case there are legal questions that arise. By doing this, everyone knows what to expect, where documents are located, and what your wishes are when the time comes.

The Law Offices of Barton P. Levine is a member of the American Academy of Estate Planning Attorneys.

Preparing to Meet with an Estate Planning Attorney – Questions to Ask Yourself

Mar 20, 2014  /  By: Barton P. Levine, Esq.  /  Category: Estate Planning

Your first meeting with an estate planning attorney is often simply an information gathering meeting. Before your estate planning attorney can begin to create your estate plan, he or she must have a very detailed picture of who you are, what your estate consists of, and what your estate planning goals are. In order for your attorney to gather all of this information, you must first do so yourself. Toward that end, ask yourself the following questions before you set out for your initial consultation:

  1. What does your estate consist of? You probably have an overall idea of what you are worth, but your attorney needs details. Make a complete list of all assets and all debts.
  2. Can your family survive without you? Of course your family would grieve your loss, but the question is whether or not they can survive from a financial perspective without you. If you contribute a significant portion to the family’s finances, then your attorney needs to include additional components to your estate plan to ensure that your family will have the necessary funds to survive if something happens to you and that those funds are immediately accessible.
  3. Who can you trust? If you will need a guardian for minor children an agent for a power of attorney, or a trustee for a trust, start thinking about who you trust enough to appoint.
  4. Who is capable? Trust is essential for many fiduciary positions; however, capacity is also essential. Who do you know that you  can trust that you believe has the capacity, knowledge and skill level required to perform well in a fiduciary role.

The Law Offices of Barton P. Levine is a member of the American Academy of Estate Planning Attorneys.

Roth IRAs and Estate Planning

Mar 20, 2014  /  By: Barton P. Levine, Esq.  /  Category: Estate Planning

For most people, Social Security retirement will fall far short of covering the costs of daily living after retirement. Therefore, many people choose to contribute to an individual retirement account, or IRA. While there are a variety of different types of IRAs to choose from, you may wish to consider a Roth IRA if you are also hoping to incorporate your IRA into your estate plan.

In a traditional IRA, a taxpayer may make tax-free contributions to the account prior to retirement. Once the individual reaches the age of 70 ½, however, distributions from the account become mandatory. Moreover, those distributions are taxed. The benefit to a Roth IRA is that while the contributions are not tax-free going into the account, distributions or withdrawals from the account are usually tax-free. In addition, unlike a traditional IRA, minimum distributions are not required when the account holder reaches the age of 70 ½.

For a taxpayer who is certain that the contributions into an IRA will be needed during retirement, a traditional IRA may still be the best way to go. On the other hand, if you are looking for a “backdoor” estate planning tool, a Roth IRA may be your best bet. If you do not touch the funds held in a Roth IRA during retirement, a significant amount of assets can be accumulated in the account by the time you die. The account can then be passed down to beneficiaries who can withdraw the funds tax-free in most cases.

The Law Offices of Barton P. Levine is a member of the American Academy of Estate Planning Attorneys.

Top Five Common Estate Planning Mistakes

Mar 19, 2014  /  By: Barton P. Levine, Esq.  /  Category: Estate Planning

Your estate plan may be the most important set of legal documents you sign during your lifetime. Not only does your estate plan decide what will happen to your assets upon your death, but it may also determine what happens to them – and to you—in the event you become incapacitated. Moreover, if a mistake is made in your estate plan, chances are you will not be around to correct it or explain what you really meant. For these reasons, it is crucial to avoid mistakes such as the following five common estate planning mistakes:

  1. Failing to seek professional assistance. While it may be tempting to save a few dollars by using “do-it-yourself” forms found on the internet, chances are good that it will cost your beneficiaries and your estate considerably more in the long run because they forms are often out of date, not state specific, or fail to cover all of the necessary issues.
  2. Misunderstanding property ownership laws. Each individual state decides what type of joint property ownership is available. Some types allow the property to pass directly to the co-owner upon death while others require the property to go through probate. Not understanding the difference can mean the difference between your spouse keeping your home or losing it through the probate process.
  3. Failing to include tax planning. An estate can lose a substantial portion of its value to gift and estate taxes without careful planning ahead of time.
  4. Failing to understand the probate process. A clear understanding of the probate process is necessary in order to create an estate that avoids as much of the process as possible.
  5. Failing to review and revise. Laws relating to wills, trusts and estates change rapidly and often as do tax laws. Failing to review your estate plan and keep up with those changes can cost your estate a huge amount of money and cost your beneficiaries both time and money.

 

The Law Offices of Barton P. Levine is a member of the American Academy of Estate Planning Attorneys.