Creating your estate plan is a big first step in protecting your assets and your loved ones. But that plan will only do some good if it’s kept up-to-date and your family knows where to find it.
Here’s a few tips to ensure that your estate plan is always working for you:
• Keep it Updated – Today, you might own a home and two cars. You might have two children, both living on their own or off at college. But who’s to say when things might change? Your children could get married and have children of their own. You might buy a different house or decide to invest in a rental property. The point is, life changes and when it does, your estate plan needs to change with it. If you don’t already have an estate planning attorney on speed dial, you should. A regular checkup with your attorney can ensure that your plan is always up-to-date. In addition to a regularly scheduled review, you should also contact your attorney immediately for major life events, such as births, deaths and new acquisitions.
• Keep it Accessible – Locking your estate plan documents away in a lock box or safe deposit box is only a good idea if someone other than you can get to them. Make sure your family knows where all your documents are kept and that at least two of your family members have access to keys, pin codes, passwords and other necessary information. If your documents are stored in a safe deposit box, add those family members to the list of people with authorized access. In addition to your estate planning documents, you should also gather up other related documents such as life insurance policies, retirement account statements and this is very important – your preferences for funeral arrangements and a list of friends and relatives you would want your family to contact. All too often, Mom or Dad knows how to get in touch with all the second cousins but the kids have no idea and unfortunately, by the time we realize we need this information, it’s too late.
• Keep it Growing – A Will or Trust is a great start to an estate plan, but don’t stop there. Do you have Advanced Directives in place to protect you in the event of a disability? Documents such as a Durable Power of Attorney and a Living Will can make all the difference in the world when you’re no longer able to speak on your own behalf. Make some notes of your concerns and then ask your attorney about additional documents you might need during your next review session.
Revocable Living Trust
With a Revocable Living Trust, you transfer the title of any of your assets (such as a house) from yourself as an individual, to yourself as Trustee of the Trust. Then you, as the Trustee of the Trust, manage the assets of the Trust for the benefit of the beneficiary, which is you. In this manner, you keep complete control over the assets. Once you pass on, a Successor Trustee takes over the management of the assets for the benefit of the beneficiaries that you named in your Trust. Your assets do not have to pass through Probate because the assets are no longer titled in your name as an individual, but are now titled in the name of the trust. Upon your death, the Successor Trustee simply transfers your assets directly to your beneficiaries without the need for court or attorney’s fees or costs. With a Revocable Living Trust you keep complete control over your assets and ensure that your assets are passed to your designated beneficiaries without delay or unnecessary costs.
Why Use A Revocable Living Trust As Part Of Your Estate Planning Strategy?
1. Assets funded into the trust avoid probate: This can save your beneficiaries time and money and if there is no probate, there is probably no public record of the distribution of assets. Note, however, that only the assets written into the trust agreement are covered by the trust. If you win the lottery today and die tomorrow without amending the trust, the winning proceeds will not be covered and may have to be run through probate.
2. You decide when and what principal and or income will be passed to which beneficiaries and for what purposes the income or principal can be distributed, i.e.: so and so can only use the money for educational purposes. If it’s not used for educational purposes by a certain date then it goes to another beneficiary. Or, the income from the trust is to go to your current spouse and when she dies or remarries or whatever condition you wish to add, the assets are to be distributed to your children, or your children are to receive the income from the trust until they reach a certain age and then the assets are to be distributed as set up in the trust.
3. The trust’s assets are normally protected from the beneficiary’s creditors as the trust owns the assets not the beneficiary. Note: The trust’s assets are not normally protected from your creditors. Because a living trust is revocable your creditors can usually go after the assets. You should consult with an attorney who specializes in estate planning. While a living trust can offer many advantages in addition to the foregoing, it also has various disadvantages. The advantages and disadvantages can depend on both your financial and personal situation. A good attorney will go over your both your financial and personal situations and then provide you with proper advice about planning and protecting your estate and assets.
Reasons to Have an Estate Plan
1. Will Alone Does Not Avoid Probate: When a client prepares a will, they assume that this document will allow them to pass all their property and cash assets to their beneficiaries without consequence. That is entirely incorrect. In fact, preparing just a will is a direct invitation to go to Probate Court. In Probate Court, a judge has to decide if the will is valid, if the beneficiaries are still around in order to inherit, and if there is a will contest among the remaining family members, before the inheritance can be made. The Probate Process is our judiciary’s attempt to assist individuals who have not taken the time to properly plan, in determining how assets are to be distributed, and to whom. Probate rules are set out in Utah Probate Code.
2. Without Proper Planning, Statutory Distribution Scheme Goes Into Place Which May Not Be Consistent With Your Wishes. The only thing that a properly prepared will succeeds in doing is avoiding the Payson, Utah Statutory Intestate scheme for distribution of assets from going into effect. That provision is the legislature’s attempt to determine a person’s natural beneficiaries when those individuals were not identified in a written will or other document. This might mean that persons that you would otherwise not include in your list become a beneficiary of your estate and are entitled to inherit your money and other assets.
3. Probate Is Expensive and Time Consuming: Probate costs between 10 and 30% of the gross estate. Yes, this is not a typo. All calculated fees are based on a person’s gross estate, and not a net estate. There are many fees that are assessed in the probate process, such as court filing fees, publication fees, service of process fees, probate examiner fees, realtor fees, and of course fees paid to the Executor and the Attorney for completing this process. These statutory fees, provides the guidelines for how much an attorney and Executor are entitled to in compensation for completing the probate process. So, for a typical estate worth $500,000 gross, the cost for the services of the Executor and the Attorney for the Executor would be approximately $26,000.00. Since a gross estate includes a variety of assets, including real and personal property, cash and savings accounts, insurance policies without named beneficiaries, and much more, most people’s gross estate far exceeds the amount in this example, so the probate fees would be much higher. In addition, probate is often a long drawn out process, and even uncomplicated estates often take over two years to completely run its course through the courts.
4. Use of Living Trusts Can Avoid Probate and Excessive Taxes: A Living Trust is considered a legal entity, recognized by the Legislature and the Courts as having the capacity to transfer assets to beneficiaries without the need for the Probate process. A properly created and fully funded trust, in addition to a pour-over will, does the task of not only avoiding probate, but possibly eliminating or reducing taxes. A Living Trust or Revocable Trust is a contract between you, the settlor, and the successor trustee to distribute funded assets to your intended beneficiaries. A trust can own or have title to all assets in your estate, including real property, personal property, cash, savings and retirement accounts, life insurance policies and more. Using an Estate Planning attorney to properly draft, and then fund a trust with all your assets, effectively avoids the lengthy probate process. In addition, a properly drafted trust, utilizing all available tax exemptions, effectively reduces or eliminates Estate Taxes, which can be as much as 45% of the non-exempt amount.
5. Health Care Wishes Will Not Be Addressed Without Complete and Current Advance Health Care Directives: Everyone remembers the story of Terry Schiavo, the young lady whose persistent vegetative state caused a massive legal and financial battle between her husband and parents over her right to live or die. Over many years, legal posturing and political struggles, her battle finally ended on March 31, 2005. Everyone seems to agree on one thing in this case. If Terry had an Advance Health Care Directive in place, properly drafted and executed, she would have had the “voice” to tell her family what she ultimately wanted to do about her health care. It would have avoided the entire problem.
6. Health Care Issues Might Impact Accounts Being Kept Current Without Durable Powers: Have you ever wondered what would happen to your house and financial obligations if you were not able to pay those payments, write those checks or make calls to handle your finances? What happens if you have a stroke, or are involved in an automobile accident which renders you unable to communicate, temporarily, with family members about what to do with those accounts or your assets? The reality is that your medical care could cease and you could lose your house and property while you were recovering from an illness. Without giving a trusted individual the Limited Power of Attorney granted in a Durable Power of Attorney to manage those financial responsibilities during your incapacity, all could be lost.
7. Without Guardianship Nomination Forms, Minor Children Lose: If you have minor children, you probably have had the thought or even the conversation with family members about what should happen to minor children if something happens to the custodial parent(s). But is the family entirely in agreement? Does everyone know what role each of them plays in your child’s life? Do they know where to get access to funds for their health care, education, maintenance and support should something happen to you? There is a very real possibility that if you and your spouse have not taken the time to write out your wishes adequately, that a family battle could ensue over guardianship of minor children, which might mean that the children have to go to foster care while the battle is being fought in court.
How to Find a Reliable Estate Planning Lawyer
Looking for a reliable lawyer to help you with estate planning may not be too easy nowadays. Thankfully, you can always tap different resources to be able to avail of professional legal assistance. Here are some ideas you can try in case you are having a hard time with the task of contacting an attorney. To begin with, one of the most effective ways to find a good lawyer is to ask friends, colleagues or relatives about it. Talk with those you know and ask them to describe their entire experience. You will be able to find out the pros and cons of certain options by doing this. Most people are definitely willing not only to recommend specific lawyers but to give you any warning about some attorneys. If you have a financial advisor, then that means you have another useful source of relevant information. Advisors usually have the contact details of good lawyers in your area and so you might want to refer to their list.
While on the subject of financial advisors, you also have to know that speaking with them about your estate planning is a good idea. Such a plan is often considered as a crucial part of an individual’s financial stability. Another idea is to ask accountants for recommendations. Besides, it is a fact that many estate planning attorneys rely on accountants when it comes to trust and income tax matters. This only means that an accountant probably knows more than a few lawyers in your area. Also, feel free to contact other lawyers you have worked with in the past for their suggestions. For example, you may have worked with a legal professional while buying a home or acquiring a property. Chances are high that they personally know someone who specializes in the field and you can take advantage of that.
You may also try doing searches on your own by utilizing the internet. You can check out official websites of different law firms and see if they offer estate planning services. What’s great about accessing such sites is that you will also get the chance to view the profiles of the lawyers along with information regarding their rates. This provides you with a good overview of what to expect when you finally begin working with a lawyer. In no time, you will be able to find an excellent estate planning lawyer that will help you with your needs.
Free Initial Consultation with Lawyer
It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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