Most people don’t like to think about their own death. While it isn’t fun, writing a will or trust is critical to ensure that your home, family, and life savings are protected. Estate planning and will drafting is not just for the benefit of a person’s decedents. Many estate planning documents- such as powers of attorney or a directive to physicians- are for the benefit of the person doing the estate planning. Each of these documents is meant to help solve a problem that a person may encounter later in life, perhaps even while still relatively young. A will and/or trust is a tool that you create to address how your assets will be handled and distributed.
Determining whether a will or trust is right for you depends on your particular circumstances. The most common concern we receive from clients about estate planning is that the word "irrevocable" sounds daunting and completely inflexible. Given the very fluid environment of estate tax law, possible repeal and possible "reimplementation" of the tax with the next administration in four to eight years, we believe it's crucial for clients to continue planning, yet keep flexibility in their plans. I will help you determine which of these is the best for your situation., and help you prepare it in a smooth and efficient manner.
The meaning of Probate is the court process by which a Will is proved to be valid or invalid. The legal process wherein the estate of a decedent is administered. When a person dies, his or her estate must go through probate. If the decedent leaves a will directing how his or her personal property should be distributed after death, the probate court must determine if the will should be admitted to probate and given legal effect. If the decedent dies intestate ( without leaving a will) the court appoints a personal representative to distribute the decedent's property according to the laws of Descent and Distribution. These laws are based on the distribution of assets based on hereditary succession.
The flaw in Probate stems from Improper Administration. Someone who has a Will or a Trust passes away, and their Personal Representative or Trustee steps in, often with little or no knowledge of the laws involved. They may start to marshal assets, pay bills and debts, and ultimately make distributions to the heirs (named in a will) or beneficiaries (named in a trust) – with little understanding of or regard for the complex legal process that governs their duties, decisions and actions. There are notices that have to be given at certain points, there are priorities among creditors, and one misstep at any point along the way can subject the estate to litigation and, in some cases, subject the fiduciary to personal liability.
Executor and Breach of Fiduciary Duty
After someone passes away, an executor or personal representative will be appointed to administer their estate during probate proceedings. That appointment creates a Fiduciary Duty. The responsible person or persons exercise significant control over the assets involved in the matter. If you suspect fraud or malfeasance, a Forensic Accounting may be necessary to confirm a Breach of Fiduciary Duty. A Forensic Accounting ensures a review of the accounting and inventory records, reconstructing records, and investigating activities of the fiduciary.
Challenging Will, Trust, or Administrations
If you believe something is amiss in your loved one’s estate plan, it might be necessary to file an objection to the submissions of a will or trust to the probate court. When a Will or Trust is contested, the administration process comes to a standstill. There are different scenarios that can result in a Will or Trust Contest. The deceased lacked testamentary capacity, a family member or someone manipulated the deceased into making changes to their Will or Trust, or the validity of the Will or Trust is in question, a forgery might be alleged.
Removal of Executor, Administrator, or Trustee
Where more than one executor or trustee is appointed, disagreements may arise as to how the provisions of a Will or Trust should be carried out. In other situations, an executor may be very slow in administering an estate, or a trustee may not be carrying out terms of the trust such as making payments to beneficiaries. In such cases, co-trustees or beneficiaries may bring an application for the removal and/or replacement of an executor or trustee. Sometimes there are situations where there is no contested administration of an estate or trust. Rather, an estate or trust requires a new trustee in order to administer newly found assets, or to continue with administration of a trust. For instance, a current trustee may be unable, unwilling or incapable to continue their duties. Sometimes, a trust instrument may not provide for the power of appointment of new trustees and even if it does, a new trustee may be wary of taking on the duty without a court Order absolving him or her of the prior trustee’s administration. In these cases, an application – whether contested or on consent – may be brought before the court to remove a trustee and appoint a new one.
Forcing Distributions from Estate or Trust
It is a trustee’s duty to act in the best interests of trust beneficiaries at all times. While acting in a beneficiary’s best interest can have a variety of implications for trustees, in the context of trust distributions, it means not straying from the terms of the trust and making distributions of trust funds on time. Unfortunately, trustees are not always mindful of this duty, which can cause trust beneficiaries to have to chase after the inheritances to which they’re entitled. When trustees breach their duties by failing to make timely distributions of trust assets to beneficiaries, beneficiaries can utilize the courts to compel the trustee to immediately make due and payable trust distributions. The best way for beneficiaries to do this is with the help from a Probate Lawyer, who can file a petition within the court on their behalf.
A question we often get is, “Is my life insurance policy considered part of my estate?” In terms of a probate estate, the answer is usually “no.” Life insurance policies typically have a named beneficiary, such as a spouse of a child. Upon the insured person’s death, the insurance company will simply pay any death benefit to the named beneficiary. Unless the estate itself is that beneficiary–which is possible, but uncommon–then the insurance policy itself will never pass through probate. Of course, that does not mean that there still cannot be legal disputes over a life insurance policy after someone’s death. There may be disputes among potential beneficiaries as to who is lawfully entitled to the insurance money. The insurance company itself may file what is known as an “interpleader action,” basically asking a judge to decide who should get the money.
Surviving Spouse or Surviving Child Claims
The death of a spouse is a traumatic experience whether it occurs unexpectedly or after a long battle with disease. On top of the emotional loss, the surviving spouse must take care of tasks that arise when their loved one passes away, such as planning a funeral and sorting out the deceased spouse's affairs.
Business Succession Planning
Providing for the disposition of your businesses is an important part of your estate plan.
At the outset, we identify the vision the client has for the business. Some business owners want to see their heirs continue running the family business. Others might prefer to see the business sold and the proceeds distributed to the heirs. Some business owners contemplate running their business until they die, while others may wish to gradually transfer control to their heirs during life while they stay on in a reduced consultant-type role.
Asset Protection Planning
Asset protection is the art of arranging a person’s affairs in a manner that safeguards his or her property from lawsuits and the claims of creditors. Liability insurance offers some degree of peace of mind against creditors’ claims, but insurance policies have many exclusions and all policies have caps. Properly drafted and executed, an asset protection plan can allow a business owner to withstand multi-million dollar claims.