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Few groups have more need of estate planning than parents. Without a plan, parents will have no say to whom their children go in the event the unthinkable happens. Furthermore, parents will have no say in who manages their children?s inheritance. Finally, any assets or money left for the children will become freely available to them at the age of eighteen. These and other issues can be addressed through simple estate planning.

At the minimum, every parent should have a will. A will allows parents to designate who will be guardian of their children. Anything less than a testamentary document can not be considered in naming a guardian. Also, this statement of preference will help avoid conflict between relatives over who gets the children. However, while a simple will can make parents’ preference of guardian known; unfortunately, it does not address the issue of asset management. Even in a moderate estate, these assets can be substantial such as a house, life insurance, IRA?s and so forth. At the age of eighteen, all assets must be turned over to the children unless a trust is also used.

A trust allows the parents to designate how and when assets are distributed to their children. Through a trust, the parents may designate management of the children?s assets to a trusted relative, friend or institution; the trustee. The trustee would then only release funds for the benefit of the children according to the parents? instructions. Furthermore, this trustee Read more…

If you are wisely attempting to put some assets into a trust (inter vivos) in your lifetime, then you have been paying attention to the important differences between wills and trusts. A trust created during your life will be far more secure with respect to its ability to withstand challenges to how your assets are to be distributed during estate planning than a will. Making a trust is a brave thing to do, because it telegraphs, to a certain extent, what you are going to do with your assets while you are still alive. This is what insulates it from attacks on your capacity, because it is unlikely, for example that, one of your relations is going to say you are insane or feeble and unduly influenced by another of your relatives to your face and this makes the trust a far surer bet than a will, in some cases.

However, the trust also may engender hard feels regarding the exclusion of a relative and those feelings will become known to a person creating a trust while they are still alive. This is the advantage of a will — if people don?t like it, you will never know. The will maker is long gone when those that don?t like what they have done contest the will and those that do like it try to defend it. Although, it should be noted that clever drafting should be able to alleviate the necessity of either a contest or a defense. That is why you need a clever estate planning attorney to create your will rather than just a form. The attorney that creates your will often defends its contents, or in other words, their understanding of your wishes. The trust is a different story, because your trust will be administered by someone (called the trustee) for the purpose of those that the trust benefits (the beneficiaries).

One of the paramount problems of forming a trust is deciding what powers the trustee has and what powers they do not have relative to the assets you have placed in trust. Remember that a trustee is already assumed to have a duty to benefit the trust and that many states have laws regarding what a trustee can and cannot do, if the settlor (the creator of the trust) does not specify otherwise. But, again, you don?t want to leave the financial destiny of your trust up to the state any more than you want the state to decide who gets your assets. Your wills and trusts attorney will be able to give you a list of the traditional powers of a trustee in your state and tell you what they mean.

Many of the powers concern what type of assets the trustee can invest in on behalf of the trust. For example, the trustee is sometimes prohibited from buying general securities for the trust because they are considered too risky. But, if you have chosen your trusted stock broker as your trustee and she has agreed, then this might be exactly the restriction you don?t want. Consult with your attorney about the kind of trust you would like to create Read more…

Many parents want to give an equal share of the family home or some other sentimental form of real property (actual land usually) to their surviving children in equal shares. As an estate-planning attorney, one often sees the strange problems created by such plans. In particular if there are an even number of children, this may create hardships as voting blocks of family members eventually have to resolve votes that are evenly split in court or at least face the hardship of that choice among their siblings.

Suppose, for example, that well-meaning parents leave the family home to four children who are well intentioned adult human beings who generally wish to treat each other fairly, as family members often endeavor to. The problem is that four children will usually have some important differences in age, lifestyle and financial needs. When four such people own property, they must all pay a fourth of the tax and of the general maintenance and upkeep of the property. Suppose one of the children is unsentimental about the family home and wants to sell the property to finance a business or vacation, and two of the other children want to keep the family home to gather for Christmas (or any other important holiday). The fourth child has a hard time deciding, but is also having financial difficulty paying their share of the taxes, maintenance and upkeep.
In order to keep the home and avoid going to court, the two children who wish to keep the home will have to pay the other children what their shares of the property are worth. This can create definite hard feelings even if the children who wish to keep the property have the ability to pay the others for their interest in it. When family Christmas (or any other important holiday) comes around, the children who sold their share of the property will feel badly about using it for the celebration of Christmas around their siblings who had to pay to keep it. By the same token, the children who had to pay to keep it may feel awkwardly about having to share it with their siblings whom they had to pay. This kind of thing can create long standing rifts in a family, difficulty between relatives who formerly got along well together.

The problem, from an estate-planning point of view, is that the property was given in equal shares to prevent any of the children from having their feelings hurt or feeling less loved and important than the other children. If, an estate planner does not help their clients see this possibility, for it is a very likely situation in the real world, it is felt that they (the attorney) have failed. Unless the family is extraordinarily wealthy the possibility that they will have differing financial needs is very common. Anyone who is a middle class American is usually Read more…

The life estate is something every first year law student learns about when they study the arcane and often bizarre history of property law that harkens back to the days of English knights, lords and serfs, and the transfer of property through the ceremonial throwing of dirt clods with oaths of duty to accompany. The life estate is about as old as they come as instruments of wealth transfer go and students love it, because it is relatively easy to understand. Apart from what students love and what is easy to remember, however, the life estate still has practical value today in your estate planning and assets management schemes.

The basic idea of the life estate is that a person can be left a piece of property for life, and upon their passing, the property in question can go to whoever is designated to receive that property afterward. The individual or group who receives the property after the life-tenant passes is called the remainderman or remaindermen, which is useful only in that it helps one to remember that the person who remains gets the property. If, for example, one wants to leave a family estate that has been with the family for many generations to their spouse and then have it immediately pass on to their children or another relative who will maintain the estate for the generation to come, then a life estate might be the perfect vehicle to do so. Another example is the same family estate, left to a surviving spouse until the surviving spouse either dies or remarries. Again, the aim is to ensure that the estate stays in family, a contingency which is threatened by the remarriage because that creates a new marital joint-tenancy, absent any other provision. Often the life-estate was used to keep assets, like the family home, headed down a single line of familial ownership.

However, the life estate has other uses, for example, it can leave an asset to be owned by one person until the death of third person. If an older relative has become incapacitated, such that it is difficult for them to make decisions for themselves, then the asset can be left in the care of another for the incapacitated person?s lifetime. An example might be, that Blackacre (the fictitious name for a piece of property used in law schools everywhere) is left in the care of cousin Tilly, until great aunt Nelly?s death. Thus, Tilly is allowed to make Nelly comfortable at Blackacre (the family home) until Nelly passes on. In this instance, Nelly?s life is what Read more…

No one can foresee problems that may arise should he become incapacitated. Yet, you can avoid negative consequences of unforeseen problems by creating Living Wills and Healthcare Power of Attorneys (HCPOA).

Setting up a Living Will or HCPOA is a relatively simple task. The first step it to consult with an attorney that specializes in estate planning to ensure that your documents are clear. Here?s an overview of what you can expect from your Living Will and HCPOA.

Healthcare Power of Attorney
The HCPOA, otherwise known as a ?healthcare proxy? is a legal document that enables an individual that you appoint (your ?agent?) to act as your healthcare representative if you become incapacitated. The agent becomes your acting representative at the moment you become incapacitated, thus eliminating the need for your loved ones to argue over your rights and wishes in court.

Your agent has the authority to request or deny any medical treatment that he determines to be appropriate. Therefore, it is a good idea to choose someone that you trust as your agent. Please note: In most states, your spouse will be your default agent. If you are not married but are in a lifelong relationship your partner, he does not automatically become your agent. Make sure that you appoint your partner as your agent to ensure that he or she has control over your medical decisions if you are unable to make them.

Because your agent has whatever powers you give him or her, make sure that he or she understands your desires. Some of the decisions he or she may need to make include but are not limited to:

Deciding whether or not you will receive medical treatment
Withdrawing life-support

Living Read more…

Every family should have a life insurance policy on at least one of the financial providers. A policy should always be in place in case one of the primary breadwinners passes away so that the family will be able to support itself if no other source of income is available after the breadwinner dies.

Estate or ?Death? taxes can be as high as 55% when the insurance policyholder dies. Many families cannot afford to pay these steep taxes and still maintain the lifestyle that they are accustomed to. Therefore, we have compiled a few tips to help ensure that your family can maximize the benefits they receive from your life insurance policy – and avoid giving so much of it to the government.

First of all, you should know that a portion of your estate will be given to your beneficiaries with a tax exclusion. The number of dollars covered by the exclusion each year varies, but here?s a brief overview: in 2004 and 2005, the exclusion was $1.5 million per person. From 2006 through 2008, the exclusion is $2 million, and, in 2009, the exclusion is $3.5 million. The estate tax is repealed for the year 2010, but the tax returns with an exclusion of $1 million in the year 2011. Now, that can get confusing!

Because the government can take so much of your estate for taxes, it?s important to shield as much as possible with the use of a variety of Trusts. One such Trust is the Irrevocable Life Insurance Trust, otherwise known as the ILIT.

When you establish an ILIT, you will name a trustee to manage that trust. Your trustee can be your financial advisor or a beneficiary. Your trustee will purchase a life insurance contract on your life. Upon your death, the policy?s death benefit will provide liquidity of the assets in your Trust.

With your ILIT, you can control how the estate is divided and spent. Having the ability to control your own estate, post-mortem, may prove to be especially helpful if Read more…

You have undoubtedly made provisions for how your beneficiaries or guardians will handle your finances in the event of your death or disability. You?ve appointed a guardian for your young children and you?ve outlined instructions for how to handle your child?s education, finances and other expenses. Sure, you have a plan in place to provide for your child ? but have you thought about special provisions for your Special Needs Child?

Special Needs Children require special care when planning your estate. Because your child may not be able to care for himself, the first and foremost consideration for him in your estate plan is deciding who will be your child?s guardian. In the event of your death or disability, your appointed guardian will be the protector of your Special Needs Child?s interests. Make sure you choose wisely.

If you have not appointed a guardian, then your child will have a guardian appointed by the court. You can rest assured that the guardian will be legally bound to adhere to the instructions that you?ve left behind.

When it comes to finances, you will also need to establish a plan that will take care of your child for the rest of his life. Depending on how you set up your estate plan, your Special Needs Child could have access to all finances that you?ve left behind for him or her. But, it?s not always strategic to leave all of your assets behind to a Special Needs Child.

If your Special Needs Child meets low-income requirements, he will have access to government and privately sponsored aid, such as in-home care, institutional care, medicines and support. Thus, leaving behind a large sum of money might actually work against your Special Needs Child.

Your Special Needs Child will most likely require special care for the remainder of his or her life. If he or she relies solely on the assets you leave behind instead of government-sponsored aid, then he will be out of luck when those assets are spent. Ultimately, the goal with a Special Needs Child is to keep him in a position to have Read more…

America has often been referred to as a litigious society, meaning that we are prone to engaging in lawsuits for even the most frivolous of offenses. Ordinary people have been sued for anything and everything including: having wireless internet in their homes, not raking their front walkways, coughing in public, and giving bad reviews of former employees. Thus, no matter who you are, it is important to stay vigilant about protecting your assets.

You may not be able to protect yourself from falling victim to lawsuits. However, you should take every measure possible to ensure that a plaintiff cannot deplete your estate, should the court rule in his or her favor. After all, if your estate is vulnerable, you risk losing not only all of your money, but the entire estate intended for your children and other desired beneficiaries.

We have compiled a short list and corresponding explanation of the four most basic methods that will help you protect your assets from lawsuits.

The Children?s Trust

The Children?s Trust is set up to directly benefit your child. You will not have access to funds once they are placed into the Children?s Trust. However, you will ensure that your children will have sufficient monies for use on things such as an education or first home.

Each spouse may put a maximum of $12,000 per year into the Children?s Trust. If you and your spouse both put money into the Trust, you can put a combined total of $24,000 per year into it.

If your child is over the age of 14, you shift income tax on the gifted assets when you put money into the Trust. As stated before, once you put money into the Trust, you cannot retrieve it. You also cannot transfer the money during a lawsuit, when a claim against you is pending. Thus, it is smart to periodically invest money into your Children?s Trust so that your children will have sufficient support in the event that your estate is depleted.

The Irrevocable Life Insurance Trust

An Irrevocable Life Insurance Trust, otherwise known as an ILIT, is a smart move for individuals even if they are not faced with litigation. An ILIT allows you to pass your life insurance policy on to your heirs tax-free upon your death. If you did not have an ILIT, then the death benefit would be subject to estate taxation.

Here?s how an ILIT works: a trustee that you name manages your ILIT. The trustee purchases a life insurance policy on you. You provide the funds for him to purchase the policy through tax-free gifts.

Unlike a direct beneficiary designation, you can control how the funds from an ILIT are spent. You can designate a portion of funds to education, individuals, and other causes to ensure that your hard-earned money is spent how you want.

Family Limited Partnership

A Family Limited Partnership is like a limited partnership Read more…

The ?Estate Tax? is the tax that the government puts on the assets that are transferred to your beneficiaries when you die. Taxable assets can include real estate, stocks, money in a bank account, and other valuable belongings. It does not look like the estate tax will permanently go away. However, with careful planning, you can reduce taxes substantially.

Americans have been planning their estates in accordance with the Economic Growth and Tax Relief Act since 2001. This Act is important because it changed 441 tax laws and was the biggest estate tax reduction in 20 years. Here is an overview of what the Act covers:

Lower Tax Rate

The Act lowers the tax rate on the following taxes:

The marginal estate tax; the tax levied on your estate when you die. Note: This tax can be a burden on heirs if you die and leave behind assets for them, but no monetary funds to cover the tax on that asset. For example, if you leave behind a home, the government might tax up to 55% of its value. Your heirs will have to find a way to pay those taxes if he or she wants to keep it. The Act?s lower tax rate helps to decrease the amount of taxes on assets such as your home so that your heirs are not overburdened, or forced to quickly sell the asset at a low price so funds to pay taxes are available.

The generation skipping transfer tax (GST); the tax break given to you if you are transferring assets to a grandchild or great-grandchild.

The gift tax; the tax levied on assets that are given away as gifts before you die.

Increased Asset Transfers

The Act increases the amount of assets that can be transferred at death without the estate or generation-skipping tax.

Temporary Tax Repeal

In the year 2010, the generation skipping tax will be repealed. This repeal means that grandparents can gift portions of their assets directly to their grandchildren and Read more…

The first question many people have when considering estate planning is how to protect their spouse in the event that they pass away. Although it is common to offer the advice that a will or trust is the best way to protect a surviving spouse, it is also important to remember to explain what protection a spouse has prior to a will or trust being created in which they are a named as an heir or beneficiary. This will enable both the client and the lawyer involved to see what else may be done to advance the protection of the surviving spouse. In addition, running through such a checklist may help an attorney see avenues for reducing costs for clients and let the clients know that their attorney is attempting to select legal options tailored to their needs rather than choosing a one size fits all approach.

For example it is important for most clients who are married to understand that they probably own most of their major assets in what is called joint tenancy. An asset held in joint tenancy is passed automatically to the surviving spouse in the event that one spouse dies. Most married couples own most of their assets, such as the family home, automobiles, investments and accounts in joint tenancy. So the typical question that an estate planner helps to answer, for those couples, is not how to protect the surviving spouse with respect to the major marital assets. The typical assets in an estate owned by a married couple do not need to be guarded for the surviving spouse, in every instance. The question becomes, where do we want this asset to go after we have both passed away.

However, you may discover, in the state in which you live, that it is helpful to have estate-planning tools, such as wills and trusts, in place in case there is some challenge to the remaining spouse?s ownership. The example above is not meant to suggest that most people don?t need estate planners to guard their spouse?s interest in case of their passing, but rather, that it is important to understand what rights your spouse has before the question of estate planning arises and then to build onto those rights. It is important to have an attorney who will explain what those basic rights are, and how the state in which you live has designed those rights. Then your choices regarding estate planning will make more sense. Remember, that planning an estate is, in part, a creative process. There are many ways to plan an estate and the one that captures your interests in the most thorough way is the best. Your attorney should be working hard to find the right solutions tailored to your needs.

Whether it is because assets have come into the marriage in a way that is not traditional, or because the assets in the marriage have already been altered by law, like a pre-nuptial agreement, there may legal instances where a spouse Read more…