Estate planning is the process of deciding how an individual’s assets will be preserved, managed and distributed upon a death or incapacity. It includes evaluating your property and possessions, creating a will or trust, designating beneficiaries and, essentially, getting your affairs in order. Proactive and thoughtful planning will make things easier for you and your beneficiaries when the time comes to pass on your valued possessions.
Take Inventory of Your Assets
We sometimes associate the word “estate” with wealth, but the fact is that we all have an estate. Your estate is everything you own, all your property and possessions, and it might be more than you realize.
The first step of estate planning is taking stock of your assets:
• Gather statements of investments, such as stocks, bonds and CDs.
• Check the ownership of real estate.
• Check the title of vehicles.
• Gather statements of retirement accounts, including 401(k)s and IRAs and ensure that proper beneficiary designations are in place.
• Gather statements on annuities.
• Ensure that business interests are accounted for and ownership structure is known.
• Take inventory of valuable jewelry, furniture, books, family heirlooms and other objects.
Once you inventory your property, you need to ask yourself an important question. What objects and assets do you want to protect and transfer to others upon your death? Consider things you own independently and jointly. Then create a list of beneficiaries, or people you want to inherit these items. You will need to estimate the value of tangible and intangible assets, so it’s helpful to include a recent property appraisal of your home and other items. However, in some cases, the exact value is unnecessary and “best guess” estimation is sufficient.
Hire a Professional Estate Planner
Not everyone needs a legal professional to assist in the estate planning process. Even the American Bar Association acknowledges that in some situations; such as when a person has minimal assets solely in his or her name — it can be cost-effective to do it yourself or use an online service. In general, however, the association advises against do-it-yourself estate planning, noting that the average person should “proceed with caution” when considering this option because there is too much is at stake. “Mistakes made in the drafting of such an important document can profoundly alter familial relationships, leaving our family members at best confused or disappointed and at worst locked in hostile litigation,” the association notes on its website.
Financial experts encourage people with complex estates to consult a legal professional. Circumstances such as ownership of multimillion-dollar estates, second marriages, blended families, owning property outside the United State and personal business ventures should be reviewed by an attorney. Other options exist if attorney fees are intimidating. Many states offer legal aid resources to reduce cost for qualifying low-income planners.
Alternatively, you can ask a certified public accountant or tax professional for help or look for lawyers who advertise discounted bundle deals.
Be as prepared as possible if you do speak with an attorney. Get an estimate of how much it will cost to complete your estate plan. Many law firms provide a checklist of documents to bring to your first consultation.
This saves time and, hopefully, a little money, too. Most estate planning attorneys can provide free consultations, flat-fee engagement agreements and free reviews of existing documents.
Estate Planning Terms You Should Know
• Probate: A typically lengthy court review process that will distribute assets from the deceased individual to the beneficiaries chosen in their will. If there is no will, state law determines how property is distributed. This is also the legal forum for the legal contest of a will by interested parties. Some assets, such as life insurance with a living beneficiary, can pass to beneficiaries outside of the probate process, but other assets can be harder to transfer outside of the probate estate.
• Will: A document outlining who receives a person’s assets after death. Also known as a last will and testament. The will can also be used to nominate guardians for any minor children and to nominate a chosen executor or personal representative, who will usually hire the attorney who can help administer the probate process, among other things.
• Executor: A person named in a will to carry out the terms of the document as it travels through probate.
• Living Trust: A document in which another party, called a trustee, holds legal title to property and assets for beneficiaries. Assets are placed into the trust when the grantor is alive and can be distributed to beneficiaries before or after the grantor’s death. Usually, trusts can be used to remove the necessity for probate. Assets can be protected from the reach of creditors or other threats to the beneficiaries. The trust gives the grantor the ability to dictate more specifically how assets will transfer to a beneficiary or charity.
• Financial Power of Attorney: This document appoints a trusted person to oversee the legal and fiscal affairs of another if he or she becomes incapacitated. It specifies exactly how much power an agent has. Power of attorney ends when the person granting power dies.
Wills and Living Trusts
A will is a legally binding document that specifies who receives your assets after you die. This document, also known as a last will and testament, ensures your wishes are carried out. The document has no legal authority to control assets until after the testator passes away, and then, during a probate administration, it can only control how probate assets are transferred. Assets that pass outside of the probate estate are not controlled by the will. Without a will, the state determines where your belongings go and who receives them, including choosing guardians for your children. This is determined by state statute and is called dying “intestate” or without a Last Will and Testament. Your beneficiaries will have no ability to change the manner in which those assets are distributed. Assets will generally be split evenly among your closest living family members. Wills can be complex or simple. With few exceptions, every will is subject to probate, or a court review meant to prove a will is authentic. Probate can take months or even years.
What Should My Will Include?
• The nomination of an executor or an appointed person who oversees your estate as it travels through probate.
• The nomination of a guardian for your minor children.
• The names of any individuals or non-profit organizations to whom you wish to leave assets. These are called your beneficiaries.
When drafting your will, don’t forget about items or beneficiaries you’ve already accounted for. For example, you may have transferred cash into a charitable gift annuity as part of your planned giving. If you’ve been receiving income from this annuity, the payments will cease upon your death, and the charity will collect the remaining funds. So, in this case, the charity has received your donation, and the stream of income the annuity provided will no longer be available to your heirs.
Living Trusts
A living trust is another way to leave assets to beneficiaries. A trust provides greater control than a will because you can stipulate specific requirements that beneficiaries must meet in order to receive assets. You can schedule period distributions based on important life events, such as graduating from college or marriage. You can also protect assets from passing to a beneficiary who may be in trouble with drugs or legal issues, while still providing the assets to be used for their benefit. You can get as creative as you want with trust conditions, provided that they do not break the law. Living trusts can be revocable, meaning you maintain control of the assets and can freely change the trusts during your life, or irrevocable, which means you can’t make changes without the consent of the beneficiary and even then some changes cannot be made. Revocable living trusts are far more common than irrevocable trusts, which serve fewer purposes. Most assets that are properly funded into a trust during life are protected from going through the probate process after death, which can save your beneficiaries time and money.
Power of Attorney
A will details what happens to your money and belongings after you’re no longer here. But what happens if you become incapacitated? Accidents and illness can render people unable to make important personal medical and financial decisions. This is where advanced directives enter the picture.
Financial Power of Attorney
A financial power of attorney grants a person the authority to make legal and fiscal decisions on your behalf.
Real estate, taxes, banking and business interests can all fall under this umbrella. When executing this document, you are the “principal,” and the person you appoint is your “agent” or “attorney-in-fact.” You, the principal, decide exactly how much power the agent holds. For example, you can grant your agent access to your bank account while stipulating that he or she cannot invest on your behalf. Generally, this document grants your agent very broad powers, so it is imperative that you chose an agent whom you trust implicitly. In order for this document to remain in effect if you become mentally incompetent, you must include language that makes it a durable power of attorney. If you don’t specify that the power of attorney is durable, your appointed agent won’t be authorized to make end-of-life decisions for you.
Estate and Inheritance Tax
The average inheritance in the U.S. between 2016 to 2019 was $46,200. So unless you are a multimillionaire, federal estate tax will not affect you, for now. Under 2019 tax code, you can transfer $11.4 million after you die without triggering federal tax. This is an increase from the $11.18 million cap that was in effect in 2018. Married couples can shield up to $22.8 million. However, the federal estate tax only applies in the year that you pass away. So if the tax code is ever changed, and it has changed often over time, you may find yourself in a less advantageous tax situation in the future.
Important Documents
Knowing that you’re providing for your loved ones and caring for them even when you’re no longer with them offers a great sense of peace. You can enjoy your retirement years without the nagging worries about what you’ve left undone.
Refer to this complete checklist so you can be confident in your plan and in control of your estate.
First, gather these signed documents and keep them in a safe place.
• Will
• Trust
• Advanced medical directive
• Insurance policies
• Retirement plans, 401(k) accounts and IRAs
• Financial power of attorney
Leave copies with a trusted loved one, the executor of your will and your attorney. You can also place a copy in a fire-proof safe. Just make sure to give the combination to someone you trust. Some states will require an original will be deposited with the clerk of court upon your death, so the original will should be kept in a safe place.
Some experts advise storing these important documents with your estate papers:
• Marriage, death, and adoption certificates
• Deeds and mortgage contracts
• Certificates for stocks, bonds and annuities
• Account numbers and passwords
• Recent investment and bank account statements
• Debt information, including credit card statements, mortgages, taxes and loans
• Safe deposit box information
Keep Your Estate Plan Updated
Once your estate plan is finalized, keep it updated.
Times to Review Your Estate Plan
• At the birth, adoption, or death of a child
• After marriage, divorce, or separation
• When you move to a new state
• After major income changes
• When there have been major changes to tax law
Short Sale
A short sale of a house happens when a lender agrees to release a homeowner from his or her mortgage for less than what is owed so the property can be sold to a third party. Short sales usually occur before foreclosure, when a lender has determined that a borrower is in default and can neither make the payments nor sell the property for enough money to cover the loan balance. Because of the housing meltdown over the past few years, the number of homeowners who owe more on their mortgages than they can recover by selling their homes has increased substantially. This has prompted an uptick in short sales across the country.
Short sales can be an effective solution for borrowers in financial trouble, buyers who are looking for undervalued properties and lenders hoping to recoup at least part of their investments. For lenders, short sales have distinct advantages over foreclosure. Lenders are not in the real estate business — they do not want to own, manage, maintain or sell property. If you are considering a short sale of your house because of debt issues, there might be other options to consider. For example, mortgage modification is a process whereby you get your lender to renegotiate the terms of your mortgage in order to give you more affordable payment possibilities.
A mortgage modification can include:
• A reduction in your interest rate, or a conversion from a high adjustable rate to a lower fixed rate.
• A reduction in the principal.
• A reduction or elimination of late fees or penalties you’ve accrued for non-payment.
• A reduction in the amount of your monthly payment in return for an extension of the loan’s term.
• Forbearance, which is an agreement to temporarily allow you to stop making payments or make smaller payments for a period of time.
Short Sale Options
It is estimated that a short sale can save a lender 25 percent to 35 percent over foreclosure. Short sales also are usually more profitable. Foreclosure and eviction procedures have built-in costs and headaches, including inspections, attorney’s fees and delays. Foreclosed properties that can’t be sold become nonperforming assets in a lender’s portfolio, subject to all the costs associated with a property’s upkeep and maintenance, including insurance, taxes and repairs. Lenders also don’t like to keep bad loans on their books. So there is an incentive for lenders to minimize their losses before having to repossess a property. In fact, most lending institutions have loss-mitigation departments that pursue alternatives to the foreclosure process. But if no form of loan modification is possible, a short sale may be your best option. Besides being cheaper, easier and faster than foreclosure, a short sale turns a huge potential loss into a smaller one.
A homeowner or potential buyer can instigate a short sale, but it always requires the approval of the lender, who must agree to all terms and conditions, including the selling price. That amount generally will be determined through a Broker Price Opinion (BPO), a document from a real estate agent who proposes a reasonable price for a particular property. The BPO contains information on comparable houses in the area, the general condition of the home’s neighborhood, and the condition of the property. A potential buyer also may purchase a professional home appraisal as part of the effort to demonstrate potential benefits of a sale to the lender.
For Struggling Sellers, a Way Out
For sellers, a short sale can avert foreclosure and the damage that can do to one’s credit-worthiness. (If a lender does submit the short-sale information to the credit bureaus, the report will stay on the seller’s report for seven years, however.) In most cases, a lender must forgive the difference between what is owed on a property and the amount of the short sale, unless state law or the terms of the loan allow what is known as a deficiency judgment. In these cases, a seller can be required to repay that difference at some future time. Even though a seller will not receive any money from a short-sale transaction, he or she may have to declare the discounted amount of the sale — the difference between the mortgage balance and the short sale — as income on federal tax returns. In addition, a seller will have to move from the property quickly if the lender approves the sale and it closes. Buyers who initiate the short-sale process can talk directly to a lender by having the seller sign an “authorization-to-release-information” agreement. Buyers can then prepare a short-sale proposal and negotiate with the lender or the lender’s loss-mitigation department about a potential sale. A buyer must produce a hardship letter from the seller, outlining why he or she is desperate for the short sale and why there is little likelihood that the loan can be paid off, now or in the future. Buyers also must provide proof of funds to the lender.
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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