Among the more common estate plans for married couples is what is sometimes referred to as a sweetheart estate plan. Such a plan provides for the entirety of the deceased spouse’s estate to pass to the surviving spouse; on the death of the surviving spouse, whatever remains will pass to the couple’s children or other designated heirs. Mutual reciprocal wills can be used to accomplish this intent. Of course, on the death of the surviving spouse, his or her estate will need to pass through the probate process.
A more sophisticated version of a sweetheart plan incorporates the use of a joint revocable living trust. There are many variations to an estate plan utilizing a joint trust. Basically, though, all of the couple’s assets are held in the name of the trust with both spouses serving as co-trustees. Upon the death of the first spouse, all of the assets remain in the trust with the surviving spouse continuing to serve as the trust’s sole trustee. During the surviving trust’s lifetime, she or he is free to modify or even revoke the trust agreement, change beneficiaries and otherwise dispose of trust assets as he or she sees fit. Among the advantages to using a trust, instead of reciprocal wills, is probate avoidance. However, this model may not serve well in a blended family situation where each spouse may have different natural heirs because of the surviving spouse’s ability to favor his or her own children when disposing the trust’s remaining assets.
A variation on the above is a joint trust which incorporates a survivor’s trust which is created following the death of the first spouse. The survivor’s trust is funded with the surviving spouse’s separate property and his or her share of the couple’s community property. Meanwhile the assets in the joint trust which were owned by the deceased spouse are used to pay administrative expenses, debts and liabilities of the decedent and any specific bequests made by that spouse. So, for example, in the blended family situation, the first spouse to die can provide for his or her own children, while also providing for the surviving spouse by directing that the remainder of the decedent’s share passes to the survivor’s trust.
Another alternative for a married couple’s estate plan is the use of separate trusts. In this arrangement, each spouse places his or her separate property and an equal share of the couple’s community property in a separate trust. Each spouse is treated as the owner of the assets in that spouse’s trust. By naming both spouses as co-trustees of both trusts, both spouses can maintain control over the community assets in the respective trusts.
On the death of a spouse, his or her trust becomes irrevocable and is distributed in accordance with his or her instructions in the trust instrument.
A couple considering the use of a trust in their sweetheart plan should weigh the advantages and disadvantages of separate, as opposed to joint, trusts. A joint trust is created by a single trust document which serves to reduce the initial costs of establishing the estate plan. A joint trust may better reflect how the married couple views their assets, i.e., as ours as opposed to his and hers. Separate trusts, however, offer better asset protection from creditor claims, particularly in cases in which only one spouse is vulnerable to such claims. The use of separate trusts can protect the assets of the other spouse and prevent those assets from being reached by creditors of the debtor spouse. Separate trusts also serve to avoid the problems of asset tracing which can arise with the use of joint trusts. When the couple has their assets in a joint trust, the surviving spouse will need to itemize and value trust assets following the death of his or her spouse, which can be a difficult process if assets have been commingled over the years.
Married couples have many alternatives insofar as creating an estate plan that meets their mutual needs and ensures that their respective estates will pass to their intended beneficiaries. Separate trusts may offer enhanced asset protection and ease of administration following the death of the first spouse. By contrast, the psychological benefits of a joint trust may outweigh the advantages of separate trusts for a married couple who are of one accord as to how they want their estate to pass.
Common Estate Planning Mistakes
No one likes to think about their own death, but we all need to consider what could happen if we die without a proper will and estate plan in place. This is particularly important if you have minor children at home or a special needs child of any age. Many people have a will drawn up at some point in their lives and then forget about it, assuming that it can protect their family indefinitely. The problem most families face is that an old document or out-of-date plan can lead to considerable problems. Recently, specialists outlined some common mistakes made by well-meaning individuals who failed to consult with estate planning attorneys or elder wills lawyers.
Mistake #1: Not Having A Plan
Many individuals assume that if they don’t have a lot of assets, they don’t need a plan. They reason that life insurance should cover their families’ needs after they are gone and that their heirs can be relied on to divide personal items, etc. amongst themselves fairly. Unfortunately, a death in the family can reveal the worst in people, who may get into ugly battles over the family silverware or a favorite antique. Life insurance may not be sufficient enough to pay for the needs of minor children or a spouse, and inheritance taxes can eat up a huge chunk of your assets if you haven’t met with estate attorneys who can structure your assets properly in order to minimize tax liabilities and maximize benefits for your intended heirs. Not having a plan can put your family’s future in the hands of strangers.
Mistake #2: Having An Outdated Plan
If you had your will prepared when you were a newlywed, it probably isn’t going to be relevant now that you have three minor children. Don’t assume that you can prepare a document that can last through any life changes. Whether it’s a death in the family, the addition of children, a divorce or a substantial increase in your earning power, estate planning attorneys or elders wills lawyers can update your will so that it addresses your current state in life as well as the status of your spouse and children.
Mistake #3: Trying To Do It Yourself Instead Of Consulting Estate Attorneys
DIY projects should never include preparing your estate. The laws for both vary widely from state to state, and those laws frequently change. Do-it-yourself kits are a “one size fits all” solution that simply doesn’t work. No one else has your unique combination of assets, liabilities, family members and concerns. Estate planning attorneys can review your unique situation and propose the plan that will work best in your particular situation.
Mistake #4: Failing To Review Beneficiary Designations
Do you have life insurance, an annuity, 401K, IRA or pension? Do you know for certain who the designated beneficiary of these financial programs is? More than a few individuals have passed away assuming that because their will outlined whom their retirement accounts and other investments should go to, everything would work out fine. Not so, because the designated beneficiary in each of these financial accounts overrides even a more recent will. So if your 401K was set up years ago with your now ex-wife as the beneficiary, a will saying it should go to your children won’t change anything.
Mistake #5: Assuming You Don’t Need An Estate Plan Because You’re Young
Although elders wills lawyers meet more often with people of retirement age, they will be the first to tell you that young adults should put a solid financial plan into action for after your death. If you have minor children or a family member with special needs, it is even more important that you create a plan and discuss the care needs of your minor children with experienced attorneys so that you can designate who should care for them when you no longer can. Planning ahead for your future should always include meeting with estate planning attorneys who can properly address all issues surrounding your assets, your heirs and their financial futures.
Some Important Considerations When Doing Estate Planning
Depending on the number of assets you own, doing estate planning can be downright simple or strenuously complex. If you’ve accumulated tons of property over many years of hard work, preparing an estate plan can be quite challenging. There are many aspects and issues to consider which, if overlooked, can cause problems in the future once you’ve passed on. This underscores the importance of talking to an attorney to help you out with it. He will evaluate your situation with an expert eye and then create a plan to suit your needs and specifications.
Below are some of the things you need to discuss with your lawyer when preparing an estate plan:
• Registration of accounts – Aside from the assets you own, you may also have several accounts with various financial institutions. One of the things you should do is to review if your accounts are properly registered with the person/s of your choosing. If you have a living trust, the accounts should also be registered in the name of the trustee.
• Beneficiaries – This is one of the most important (perhaps the even the most important) of all the things you need to take into account when doing estate planning. This is because you’re making the plan primarily to designate who are the beneficiaries of your property and assets in the event that you pass away. You should also regularly update the plan to check if the beneficiaries you included there are still the ones you intend to bequeath your assets.
• Durable Power of Attorney – Because of an illness or an accident, you can get incapacitated. You can anticipate for this eventuality by naming someone (even your attorney himself if you completely trust him) to make financial and healthcare decisions on your behalf. Executing a Durable Power of Attorney allows you to do name the person of your choice for such decisions.
• Last Will and Testament – This is a legal declaration by which you designate a person (or more than one person if you so wish) to manage your estate after your death. This document also specifies how your property is going to be distributed once you’re gone. It ensures the proper transfer of certain assets in the manner you’ve specified.
• Trusts – These are legal documents that permit you and your successor trustee in transferring assets to prior to and after your death. Trusts are generally composed of 4 elements: the grantor, the trustee and successor trustee, the property, and the beneficiaries. These are a few of the most important things that you need to take into account when doing estate planning. Again, if you have a lot of property, it would be best to get a lawyer (and even a qualified tax adviser) to help you out with the planning to make sure you don’t miss out on any detail.
Reasons To Consult An Estate Planning Attorney
Nearly everyone craves control. It’s just human nature! So it only makes sense that many individuals want to be in complete control when it comes to long term care planning, creating their will, and other end of life issues. However, drafting a will or making plans for your estate without the help of a qualified estate planning attorney can be a huge mistake — and here’s why!
Estate Laws Vary By State And Change Frequently
One of the most convincing reasons to seek an attorney experienced in elder law is the simple truth that probate laws vary significantly depending upon the state in which you reside. What is acceptable in one state may not be in another. Not only do these laws vary geographically, but they also change quite often!
Individuals who seek professional assistance are less likely to face unnecessary disputes or setbacks as a result of one minor misinterpretation or error. Estate planning attorneys are extensively trained in all areas of elder law. It is their job to keep up with every intricate detail of state and local laws, including any amendments or changes. That’s why it is a good idea to have your estate planning attorney review your will, and other important documents, periodically to ensure they are in compliance.
Probate Attorneys Can Help You Create A Solid Will
Drafting a will may seem like a simple endeavor, but truthfully, it is very complex! While there are countless decent templates floating around the Internet, the problem is that everyone’s situation is unique and probate laws vary. As such, a cookie cutter approach just isn’t advisable. Probate attorneys are skilled in crafting customized wills that minimize complications and disputes down the road. You may wonder what exactly “probate” means? In essence, this is the process through which a will is declared legally valid, and it occurs shortly after an individual’s death. Once the probate procedure begins, there are a multitude of issues that can either complicate or significantly delay the proceedings, including unhappy family members who may file lawsuits. By sourcing a skilled probate attorney to create your will, you can drastically reduce the likelihood of such setbacks and thereby ensure that your affairs are handled smoothly and to your specifications.
Estate Planning Is Complex And Should Be Left To The Experts!
Most importantly, seeking the expertise of an elder law attorney is crucial because simply put, estate planning is a complicated process. This is definitely not a subject one can become proficient in with a mere Google search or two. Probate attorneys spend years learning all the intricacies of elder law, with the goal of providing the best possible legal and financial advice; so do yourself a huge favor and let them do their job!
You can still be actively involved in the process, but you’ll also have the assistance of an expert to explain and simplify the complex issues the ideal way to ensure your long term wishes are met in the most professional and precise manner possible!
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!
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