My friend/relative/neighbor just died in his prime. What can I do to get my estate plan in place now?
Think of an estate plan as a house. Your will forms the foundation and the floor and some of the walls. If you die suddenly, you at least have the basics of your plan in your will: Who gets what? And who is in charge?
If you have spouse or heirs who are not capable of handling or receiving an inheritance, you will need to set up a trust to provide for their needs. Your estate-planning attorney also needs to know about all things of value (or sentiment), e.g., the family business, heirloom jewelry, joint accounts, investment accounts, real estate, part interests in real estate or businesses. The structures for your assets form the rest of the walls of the house.
If you check into a hospital, you will need a financial power of attorney in case you stay long. Likewise, you would need a healthcare proxy (a.k.a. living or advance medical directive) if you lost consciousness. These powers of attorney are like the roof of your house.
Just as important are the appointments you make for executors, trustees, conservators, etc. These are the people who have the “keys” to your house.
To get started, give us a call. Don’t wait until you think you have detailed answers to all your questions. We are here to help you ask and answer such important questions. We usually can complete an estate plan in three weeks. In emergencies, I have completed estate plans in less than a day and brought them to hospital rooms for execution. Call us at 404-239-2661.
My parent/grandparent just died. What do I need to do to probate the will and estate?
Gather the documents and call an attorney. In many cases, an attorney is not needed except for a “big picture” consultation to prevent troubles. In other cases, the probating of the will is a “front-loaded” process, that is, once the petition and attachments are filed, there is a wait followed by the fairly simple settlement of the estate. Your attorney would earn most of his fee preparing and filing the documents properly. In the difficult cases, conflicts are expected or already evident, and your attorney will need to be energetic and assertive to settle the estate. Call us at 404-239-2661.
Could you create a trust to protect my spouse/daughter/son from the deadbeat spouse/in-laws/creditors/poor health/disability/substance abuse?
Yes! Let’s face it: not everyone needs to receive an inheritance in cash! A trust is like a mobile safe whose treasure can be used to support a particular person. The person creating the trust (the “settlor”) gives assets during life (or at death through a will) to a trustee, who does not own the property, but controls it for a specified purpose, e.g., care of a disabled child or spouse (the “beneficiary”), and for a specific time. When the trust terminates, what’s left of it, if anything, goes to the “remaindermen”, that is, people named or described in the trust, e.g., “the grandchildren of Carol Brady”.
Trusts, like contracts, can be structured to do almost anything. Tom Glavine, the Braves’ Hall of Fame pitcher, created complex “incentive trusts” for his children which provide funds for desirable activities, e.g., higher education, and discourage bad habits.
Call us at 404-239-2661.
What are the best ways to avoid the probate court?
Plan. Execute your plan. Follow up to make sure your assets are in trusts, and not in your name.
Many people don’t know that your probated “estate” does not include anything that is not in your name at death. If your house passes to your spouse by deed (“joint tenancy with right of survivorship”), then the house never gets the attention of the probate court but goes to one spouse upon the death of the other. Similarly, if you name your spouse as primary beneficiary of your retirement accounts and investment accounts and name your children as the secondary beneficiaries, then those assets are paid at death to the named beneficiaries, no matter what is written in your will.
Most significantly, if you place your assets under the control of a trustee before your death, then the assets, e.g., the family business, is no longer in your name, but in the name of the trustee, who controls the business not according to your will, but according to the terms of the trust.
Is this complicated? Yes. Should you embrace such complexity for the sake of your family? Perhaps.
Call us at 404-239-2661.
Now that I have the trust, what do I do to make sure it is fully funded?
If you want to have something in common with Michael Jackson, create trusts for your children and then fail to fund them! Your children will be shaking their heads as they go to court.
Creating the trust is just the beginning. The big second part is to place all significant assets into the trust and get used to acting, saving, and spending not as an individual, but as trustee! Your bankers, financial counselors, and other advisors can help you with this transition. You will also need a real estate attorney. Call us at 404-239-2661.
How do I plan inheritances for my blended family without hurting my spouse, children, or stepchildren?
Not an easy question to answer! You love your current spouse. You love your children. They don’t always get along, or at least you sometimes detect an unspoken tension that might come out full force when someone dies. Your stepchildren complicate matters further.
It will take great courage to grab this bull by the horns, but the consequences of doing nothing could be dreadful. It is quite common for a surviving spouse to keep everything and leave nothing to the stepchildren. And yes, some stepchildren are difficult and only make things worse.
Who is in a position to do something about it? You, the living natural parent who can rewrite your will, make specific bequests of heirlooms to those most appreciative, create trusts, buy life insurance policies, and make sure that everyone is taken care and no one feels cheated. You can even create a trust to benefit whichever spouse survives the other and then pass the remainder to your children upon the death of the widow(er).
Is this easy? No. Should a blended family have a simple estate plan? Almost certainly not. Call us at 404-239-2661.
When do I need a power of attorney for my ailing parent?
ASAP. A parent who is still thinking clearly can sign a power of attorney. If, however, you wait too long and the parent loses competence, then you will have to go to the probate court and ask for a conservatorship of your parent’s wealth. There will be court fees, a guardian ad litem, at least one hearing, and perhaps a major family feud.
Get a power of attorney now. Call us at 404-239-2661.