Posts Categorized: Wills

Probate: What It Is & How To Avoid It – Part 2

by Tara Cheever ~ Attorney at Law March 22, 2022 Estate Planning, Power of Attorney, Probate, Trusts, Wills

Unless you’ve created an estate plan that works to keep your family out of court when you die (or become incapacitated), many of your assets must go through probate before those assets can be distributed to your heirs. Like most court proceedings, probate can be time-consuming, costly, and open to the public, and because of this, avoiding probate – and keeping your family out of court – is often a central goal of estate planning. 

To spare your loved one’s the time, cost, and stress inherent to probate, last week in part one of this series, we explained how the probate process works and what it would entail for your loved ones. In part two, we’ll discuss the significant drawbacks of probate for your family and outline how you can help them avoid probate with wise planning. READ MORE

Electronic Wills

by Tara Cheever ~ Attorney at Law March 18, 2022 Estate Planning, Power of Attorney, Wills

Not very long ago, all legal documents were printed on paper and signed with a pen. But in today’s world, where we sign commercial contracts, form and run businesses, and buy everything from groceries to cars online, it seems almost prehistoric for state laws to require that someone appear in person in front of witnesses to sign a will printed on paper.

Under established law, a will is generally invalid unless it is in writing, signed by the willmaker, and witnessed by two other people. There is a good reason for these rules: courts need to determine whether a will is authentic after the person who made the will has died. By requiring that a willmaker follow these rules, a court can ensure that the willmaker had mental capacity when they signed the will, that they signed it voluntarily (and not under duress or threat), and that the will reflects the willmaker’s wishes. READ MORE

Probate: What It Is & How To Avoid It – Part 1

by Tara Cheever ~ Attorney at Law March 15, 2022 Estate Planning, Incapacity, Power of Attorney, Probate, Trusts, Wills

Unless you’ve created a proper estate plan when you die, many of your assets must first pass through the court process known as probate before those assets can be distributed to your heirs. Like most court proceedings, probate can be time-consuming, costly, and open to the public, and because of this, avoiding probate – and keeping your family out of court – is a central goal of most estate plans. 

It’s important to point out that even if you have a will in place, your loved ones will still be required to go through probate upon your death. Therefore, if you want to keep your family out of court and out of conflict when you die, you cannot rely solely on a will, and you’ll need to put in place other estate planning vehicles, which we will cover in further detail later.  READ MORE

How to Protect Yourself from Claims of Self-Dealing When Serving as a Trustee

by Tara Cheever ~ Attorney at Law March 11, 2022 Estate Planning, Power of Attorney, Trust Administration & Probate, Trustee, Trusts, Wills

A trustee usually has quite a bit of discretion in managing a trust’s accounts, money, and property (known as assets). At the same time, as a fiduciary, a trustee also owes the trust’s beneficiaries a duty of loyalty, which prohibits the trustee from self-dealing. In the simplest terms, self-dealing happens when a trustee uses the trust’s assets for their benefit instead of for the beneficiaries’ benefit.

Despite this simple definition, self-dealing can be much harder to identify in practice and is often done in ignorance, particularly when complicating factors such as the trustee being a trust beneficiary. READ MORE

Estate Planning Considerations for Couples with an Age Gap

by Tara Cheever ~ Attorney at Law March 8, 2022 Estate Planning, Power of Attorney, Trusts, Wills

With couples of similar ages, planning for the future is naturally a joint effort. However, if you are married to someone significantly older or younger than you, the future can look different and mean different things to each of you. To protect yourself, your spouse, and other loved ones, you need comprehensive financial and estate plans. For these plans to work as intended, you must have an open and honest conversation with your spouse about the following financial and estate planning topics.

Because you may rely on a job to provide you and your spouse with health insurance and income, and a job can take up a large amount of your time, it is essential to discuss these questions about the future of your employment. READ MORE

Using Beneficiary/Transfer-on-Death Deeds

by Tara Cheever ~ Attorney at Law March 4, 2022 Estate Planning, Incapacity, Personal Representative, Power of Attorney, Trusts, Wills

A TOD deed (also known as a beneficiary deed) does what it sounds like it does – it transfers your real property to your selected beneficiaries upon your death, similar to a payable-on-death designation for a bank account or a transfer-on-death registration for an investment account. You continue to own and control the real property during your lifetime, so you can sell it, lease it, refinance it, give it away, or do anything else with it you choose.

You also continue to pay the mortgage and taxes and maintain the property. If you still own the property at your death, the TOD deed works to automatically transfer the property to your named beneficiaries without having to go through probate. And if you change your mind during your lifetime about whom you have named as beneficiaries in the TOD deed, you can amend or revoke it at any time. READ MORE

Protect Your Home, Family, & Assets From The Growing Threat Of Natural Disasters

by Tara Cheever ~ Attorney at Law February 28, 2022 Asset Protection, Estate Planning, Power of Attorney, Trusts, Wills

The WMO found that climate change has helped drive a five-fold increase in the number of weather-related disasters in the last 50 years, and these calamities are getting more severe each year. As a result of climate change, weather records are being broken all the time, turning previously impossible events into deadly realities.

Despite this threat, most homeowners lack the insurance coverage needed to protect their property and possessions from such calamities. Roughly 64% of homeowners don’t have enough insurance, according to a 2020 report from CoreLogic, the nation’s largest source of property and housing data. One major factor contributing to this lack of coverage is the mistaken belief that homeowners insurance offers adequate protection from natural disasters. READ MORE

Marital Disclaimers and the Clayton Election: Last-Minute Estate Tax Planning

by Tara Cheever ~ Attorney at Law February 25, 2022 Estate Planning, Power of Attorney, Trusts, Wills

Before diving into some of the particulars of using a disclaimer and the Clayton election, let us first lay some conceptual groundwork. The main objective of using a marital funding formula in estate tax planning is to take advantage of both (1) the estate tax marital deduction and (2) the estate tax exemption to eliminate the federal estate tax due at the first spouse’s death and to reduce or eliminate federal estate tax due at the surviving spouse’s death.

What is the marital deduction? In general, as long as they meet the requirements under federal estate tax law, transfers from a decedent spouse to a surviving spouse (provided the surviving spouse is a US citizen) are excluded from the decedent spouse’s estate and are not subject to estate taxes at the first spouse’s death. This is the unlimited estate tax marital deduction. The unlimited estate tax marital deduction essentially postpones the payment of any estate taxes until after the second spouse’s death. READ MORE

Updating Your Estate Plan For Divorce: 5 Changes To Make

by Tara Cheever ~ Attorney at Law February 22, 2022 Estate Planning, Power of Attorney, Trusts, Wills

Your marriage is legally still in full effect until your divorce is final, so if you die or become incapacitated while your divorce is ongoing and haven’t changed your estate plan, your soon-to-be ex-spouse could wind up with complete control over your life and assets. Unless you want your ex to have that kind of power, you need to take action as soon as possible.

However, keep in mind that some states have laws that limit your ability to change your estate plan once your divorce is filed, so you may want to consider making some or all of the following changes to your estate plan as soon as the divorce is on the horizon and before you’ve filed. READ MORE

Springing Financial Powers of Attorney

by Tara Cheever ~ Attorney at Law February 18, 2022 Estate Planning, Power of Attorney, Probate, Trusts, Wills

If you can no longer manage your affairs, you will need somebody to act on your behalf and in your best interest. A financial power of attorney (POA) is a legal document that lets you designate a trusted person to make financial decisions for you (sign checks, open a bank account, collect your mail, etc.). The financial POA can be immediate, meaning somebody else is authorized to act for you now and into the future, or it can be springing, that is, effective only if and when an event occurs (usually when you become incapacitated or unable to make decisions for yourself).

While every estate plan should feature a financial POA, a springing financial POA requires a little more nuance to overcome its limitations. Additionally, a springing financial POA can pose problems that may not be quickly resolved even when carefully written. That said, some people dislike the idea of making a financial POA effective immediately. They prefer to have a financial POA kick in only when necessary. READ MORE

Statements of Intent or Purpose in Estate Planning Documents

by Tara Cheever ~ Attorney at Law February 11, 2022 Estate Planning, LIfe Insurance, Trust Administration & Probate, Trusts, Wills

The reasons you, as a trustmaker, create a trust are certainly special and important to you. Still, your intent or purpose for creating a trust can also have significant legal ramifications.

For this reason, it is often critical that a trustmaker express in writing their purpose for creating the trust. There are essentially two different ways of documenting a trust maker’s intent – each has slightly different purposes, and sometimes both are generally called a “statement of intent.” READ MORE

Changes to the FAFSA Form and What It Means for Grandparents

by Tara Cheever ~ Attorney at Law February 4, 2022 Estate Planning, Guardians for Minor Children, Trusts, Wills

College tuition costs and student loan debt keep going up, so much so that student debt has reached a crisis point. Student loan debt in the United States is approaching $2 trillion and grows six times faster than the national economy. The average annual cost of a private four-year college is more than $32,000 – not including expenses such as housing, food, books, and supplies. Between 2005 and 2020, the average per-student debt level nearly doubled, from $17,000 to $30,000. 

Student loan debt is an economic drag, limiting opportunities long after graduation. One of the most popular ways to save for education is a 529 plan, a qualified tuition program. These plans take their name from Section 529 of the Internal Revenue Code, but they are established and maintained at the state level. Every state except Wyoming has a version of the 529 plan.  READ MORE

Don’t Leave Your Children With The Babysitter Until You Read This

by Tara Cheever ~ Attorney at Law February 1, 2022 Estate Planning, Guardians for Minor Children, Trusts, Wills

As we head into the third year of the pandemic, we are coming to terms with just how fragile our lives and health are. If you haven’t gotten sick yourself, it’s almost certain you know someone who has, and many of us even know of one or more individuals who have died in the past two years. 

Although severe illness and death are always at risk for – and should plan for – the pandemic has forced many of us to face our mortality like no other event in recent memory. Some of those worst-case scenarios we thought would never happen now seem much more likely, and for some people, those unthinkable situations have even become a reality. READ MORE

Pour-Over Will: Not Your Average Will

by Tara Cheever ~ Attorney at Law January 28, 2022 Estate Planning, Probate, Trusts, Wills

If your estate plan is based around a living trust, you are probably familiar with the trust’s benefits over a standard will. Avoiding probate, reducing attorney’s fees, and providing privacy for you and your loved ones are the primary benefits of using a living trust.

Ideally, you transfer all your accounts and property into the living trust. At the same time, you are still alive by changing ownership from you as an individual to you as the trustee of the living trust or naming the living trust as the beneficiary of items such as life insurance or a retirement account. The trust, in effect, is a legal entity that is separate from your estate (the money and property you own). Since you create the trust while you are alive and will most likely name yourself as the beneficiary, you will continue to use and enjoy the accounts and property. READ MORE

5 Ways DIY Estate Plans Can Fail & Leave Your Family At Risk – Part 2

by Tara Cheever ~ Attorney at Law January 25, 2022 Estate Planning, Guardians for Minor Children, Incapacity, Personal Representative, Power of Attorney, Trust Administration & Probate, Trustee, Trusts, Wills

State laws are also particular about who can serve in specific roles like executor, trustee, or financial power of attorney. In some states, for instance, the executor of your will must either be a family member or an in-law and if not, the person must live in your state. If your chosen executor doesn’t meet those requirements, they cannot serve.

Furthermore, some states require the person you name as your executor to get a bond, like an insurance policy, before they can serve. Such bonds can be challenging to get for someone who has a less-than-stellar credit score. If your executor cannot get a bond, it would be up to the court to appoint your executor, which could end up being someone you would never want managing your assets or a third-party professional who could drain your estate with costly fees. READ MORE