Advise your beneficiaries of your distribution plans, especially when children are being treated unequally. Will contests and litigation arise from disappointed feelings of entitlement. Telling the children ahead of time what their shares will be may avoid a later dispute. (Although it could cause family problems now though so be careful. Sometime writing a “family love letter” to your children to be read after your death, explaining why you set up the distribution plan the way you did may help as well. This will vary from family to family.
Use a Trust - not just a Will. Since trusts can be funded and operate during lifetime, it is difficult to contest on the grounds that the individual was unaware of its terms. When the Trustor of the trust dies, there is no need to begin a court proceeding to "prove" the validity of the trust, like there is for a will.
Use Disinheritance Or No Contest Clause. The goal here is to prevent beneficiaries from causing a legal dispute after someone dies. A lot of trust and estate litigation is not about the validity of the document, but about how it is to be interpreted or how it is being managed. In order to reduce this type of litigation, a disinheritance clause can cause a forfeiture of a beneficiary's interest if such a challenge is made. The entire estate plan must be consistent with this clause.
Use Mediation or Arbitration Provisions in your plan. Arbitration or mediation cannot be used with respect to the challenge of a document's validity unless the parties agree to it. Using a disinheritance clause to cause forfeiture if the parties will not participate can be used. This could stop claims that are filed only to harass other beneficiaries or to delay distributions to others. Another approach would be having the parties enter into a contract agreeing to arbitration before the transfer.
Disclaimer: The information provided is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to your particular issue or problem. Use of this information or any related information does not create an attorney-client relationship between ALVIS FRANTZ AND ASSOCIATES. The opinions expressed at or through this site are the opinions of the individual authors and does not reflect the opinions of any firm or attorney.
Friday, April 22, 2011
Tuesday, April 19, 2011
DIY Trusts and Wills - Why they are not the best option
One of the risks inherent in opting for a do-it-yourself estate plan is that, without the help of an experienced attorney, you can’t spot any missing pieces of the puzzle.
One such puzzle piece is what is called the residuary clause, which is an extremely important part of any will or trust and may be missing in a do it yourself estate plan. A residuary clause gives instructions as to what should happen to property that is not specifically left to someone in other clauses of your will or trust.
For example, if your will or trust states that your home, furniture and cars will go to your spouse, and that your jewelry will go to your daughter, but there is no specific mention as to who will get your boat, your holdhold items, your collectibles and even a bank account, then your residuary clause will control what happens to that property.
In addition, the residuary clause will control what happens to property that you leave to someone but that person dies before you and before you update your will or trust. For instance, if you left your art collection to your niece but she dies before you, then your residuary clause would control who would ultimately inherit the property.
So what happens if you don't have a residuary clause? Any property not left to a specific person or charity would have to be probated and then divided among your heirs at law in the manner provided by the Probate Code of California. The drawbacks to this obviously is the time and expense added to the probate process, and of course, the fact that you and the state of California might not have the same ideas about who should ultimately receive your property.
Working with an experienced estate planning attorney can help ensure that your property makes its way into the hands of its intended recipients. Call us at 925-516-1617 to see if you are property protected.
One such puzzle piece is what is called the residuary clause, which is an extremely important part of any will or trust and may be missing in a do it yourself estate plan. A residuary clause gives instructions as to what should happen to property that is not specifically left to someone in other clauses of your will or trust.
For example, if your will or trust states that your home, furniture and cars will go to your spouse, and that your jewelry will go to your daughter, but there is no specific mention as to who will get your boat, your holdhold items, your collectibles and even a bank account, then your residuary clause will control what happens to that property.
In addition, the residuary clause will control what happens to property that you leave to someone but that person dies before you and before you update your will or trust. For instance, if you left your art collection to your niece but she dies before you, then your residuary clause would control who would ultimately inherit the property.
So what happens if you don't have a residuary clause? Any property not left to a specific person or charity would have to be probated and then divided among your heirs at law in the manner provided by the Probate Code of California. The drawbacks to this obviously is the time and expense added to the probate process, and of course, the fact that you and the state of California might not have the same ideas about who should ultimately receive your property.
Working with an experienced estate planning attorney can help ensure that your property makes its way into the hands of its intended recipients. Call us at 925-516-1617 to see if you are property protected.
Tuesday, March 1, 2011
Unmarried Couples – What they need to know to protect themselves and their estates:
There are many unique issues facing unmarried couples. Just because two people chose not to marry, or may not have the legal right to marry, does not mean they are without options to protect each other with their estate planning.
As California does not recognize common law marriage nor same sex marriages, these couples do not have the same protections as legally married couples. Their partner is not considered a “next of kin” when it comes to health care, they are not a legal “heir” under the probate code, and there could be issues regarding child custody rights. Therefore, it is very important for couples to understand what their legal status as a couple is and what legal implications that may have on them.
One way cohabitating couples can protect themselves is through agreements such as Domestic Partnership or Cohabitation Agreements which act like a Prenuptial Agreement (but without the “nuptial” part). These documents clarify ownership of co-owned property, use of property, handling of debts, etc. Additionally, Wills, Trusts, Powers of Attorney, and Advance Directives are other extremely important estate planning documents that will allow couples to name who will manage their financial affairs and health care when they are no longer able to, and how their estate will be distributed after death. Children bring up a whole set of other issues, since custody and parenting rights can’t be contracted. As a result, nominations of guardianship in Wills are incredibly important.
Remember, estate plans aren’t for you; they’re for the people who depend on you. So if the law doesn’t provide you protection for each other, you need to create it through agreements and estate planning documents.
As California does not recognize common law marriage nor same sex marriages, these couples do not have the same protections as legally married couples. Their partner is not considered a “next of kin” when it comes to health care, they are not a legal “heir” under the probate code, and there could be issues regarding child custody rights. Therefore, it is very important for couples to understand what their legal status as a couple is and what legal implications that may have on them.
One way cohabitating couples can protect themselves is through agreements such as Domestic Partnership or Cohabitation Agreements which act like a Prenuptial Agreement (but without the “nuptial” part). These documents clarify ownership of co-owned property, use of property, handling of debts, etc. Additionally, Wills, Trusts, Powers of Attorney, and Advance Directives are other extremely important estate planning documents that will allow couples to name who will manage their financial affairs and health care when they are no longer able to, and how their estate will be distributed after death. Children bring up a whole set of other issues, since custody and parenting rights can’t be contracted. As a result, nominations of guardianship in Wills are incredibly important.
Remember, estate plans aren’t for you; they’re for the people who depend on you. So if the law doesn’t provide you protection for each other, you need to create it through agreements and estate planning documents.
Disclaimer: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.
Wednesday, January 26, 2011
A Gift Isn't Always A Gift
If you as a parent give a substantial amount of money to one of your children, it is important for the parents to decide how they want to treat that money. First, if you decide it is a loan, it is important to have a proper promissory note drawn up and terms of payment. It is also important to determine what will happen if the loan is not repaid. For example, do you want the loan to be forgiven if you die, or should the unpaid balance be deducted from that child's inheritance.
But what if you decide to treat the amount as a gift. If you have more than one child, it is very important to understand and document how you want to address this gift. If the other siblings discover a gift was made to one of them but not all of them, it could create some resentment or fighting after both of the parents have passed away.
When making a gift to a child, you need to decide if this is an outright gift with no bearing on future inheritance, or rather, do you want the gift to be considered an "advance" of future inheritance. In this case, the gifted amount would be deducted from that child's share of their inheritance at the time they are to receive their inheritance.
So in simple terms, if you chose to treat the amount given as a "gift", you will need to do one of the following (depending on your wishes):
1) Intend to provide disproportionate amounts to your children through gift and inheritance
2) Gift equalizing amounts to all siblings (be sure to understand any tax implication of your gifting)
3) Consider the gift an advance on inheritance.
Whichever option you choose, you should be sure to document, document, document - either with an update to your will and/or trust, in other writing, or through documented action. If you don't, there will most likely be a a great deal of fighting and frustration among your children after you have passed away.
But what if you decide to treat the amount as a gift. If you have more than one child, it is very important to understand and document how you want to address this gift. If the other siblings discover a gift was made to one of them but not all of them, it could create some resentment or fighting after both of the parents have passed away.
When making a gift to a child, you need to decide if this is an outright gift with no bearing on future inheritance, or rather, do you want the gift to be considered an "advance" of future inheritance. In this case, the gifted amount would be deducted from that child's share of their inheritance at the time they are to receive their inheritance.
So in simple terms, if you chose to treat the amount given as a "gift", you will need to do one of the following (depending on your wishes):
1) Intend to provide disproportionate amounts to your children through gift and inheritance
2) Gift equalizing amounts to all siblings (be sure to understand any tax implication of your gifting)
3) Consider the gift an advance on inheritance.
Whichever option you choose, you should be sure to document, document, document - either with an update to your will and/or trust, in other writing, or through documented action. If you don't, there will most likely be a a great deal of fighting and frustration among your children after you have passed away.
Disclaimer: The information provided is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to your particular issue or problem. Use of this information or any related information does not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual authors and does not reflect the opinions of any firm or attorney.
Monday, January 3, 2011
Happy New Year! Happy New Tax Law?
Well, the year of waiting to find out what would become of the Estate Tax is finally answered, or is it? A better statement would be that the answer will be temporarily postponed for another two years but in the meantime… here’s a tax law to hold you over and to even cause you additional planning questions.
Last year was there was no federal estate tax law in effect. Now, the new tax law (effective 1.1.11) provides two options to the surviving heirs of individuals who died last year. They can either follow the 2010 rules – no federal estate tax, or follow the new 2011 tax rules which provide individuals with a $5 Million dollar exemption.
If you chose the new 2011 rules you can pay estate tax (35%) of a taxable estate over the $5 million exemption and your heirs get a “stepped up basis” of all such inherited property. “Stepped up” means that the cost basis of any property you inherit is determined by the value of that property at the date of death of the previous owner. This is important for capital gains tax savings when the property is later sold.
Alternatively, if chose to follow the 2010 tax rules, you will not pay any estate tax regardless of the size of your estate and the estate will be subject to a modified “carryover basis” rules. When you inherit property under this option, the cost basis of the property stays the same as it was for the previous owner. (Typically the price they paid plus capital improvements). When you sell the inherited property, your capital gains tax will be based on the older and typically lower cost basis.
The carryover however, is modified in that an heir can still step up the first $1.3 million of an inheritance, and a surviving spouse can take another $3 million. Anything in excess of these amounts would be fully carried over at the original cost basis.
So for anyone administering a large estate for a 2010 death, many options are available and careful consideration needs to be made with your tax advisor to determine which tax rules will be more beneficial to your estate. And the lingering question, what will happen if you die in 2013 when we may potentially be facing another period of uncertainty
Disclaimer: The information provided is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to your particular issue or problem.
Last year was there was no federal estate tax law in effect. Now, the new tax law (effective 1.1.11) provides two options to the surviving heirs of individuals who died last year. They can either follow the 2010 rules – no federal estate tax, or follow the new 2011 tax rules which provide individuals with a $5 Million dollar exemption.
If you chose the new 2011 rules you can pay estate tax (35%) of a taxable estate over the $5 million exemption and your heirs get a “stepped up basis” of all such inherited property. “Stepped up” means that the cost basis of any property you inherit is determined by the value of that property at the date of death of the previous owner. This is important for capital gains tax savings when the property is later sold.
Alternatively, if chose to follow the 2010 tax rules, you will not pay any estate tax regardless of the size of your estate and the estate will be subject to a modified “carryover basis” rules. When you inherit property under this option, the cost basis of the property stays the same as it was for the previous owner. (Typically the price they paid plus capital improvements). When you sell the inherited property, your capital gains tax will be based on the older and typically lower cost basis.
The carryover however, is modified in that an heir can still step up the first $1.3 million of an inheritance, and a surviving spouse can take another $3 million. Anything in excess of these amounts would be fully carried over at the original cost basis.
So for anyone administering a large estate for a 2010 death, many options are available and careful consideration needs to be made with your tax advisor to determine which tax rules will be more beneficial to your estate. And the lingering question, what will happen if you die in 2013 when we may potentially be facing another period of uncertainty
Disclaimer: The information provided is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to your particular issue or problem.
Wednesday, November 24, 2010
If I set up a living trust, does this guarantee that my estate will not have to go through a probate?
Unfortunately, despite what most people believe, the answer to this question is not always “No”. Yes, a properly drafted living trust is very effective at avoiding probate of your estate at death; however, there are several situations which can arise which will require some, or maybe even all, of your assets to still have to go through probate. In fact, many of the probate cases I handle for my clients are for one or two assets that were just not in the decedent’s living trust.
One primary reason for this is that when people create their living trust, especially when they try one of the “do it yourself” methods, they fail to properly “fund” the trust. What this means is that they do not re-title all of their assets like real estate, bank accounts, and brokerage accounts into their living trust.
Another reason for this is that people simply fail to review their trusts and assets on a regular basis to ensure that they are still funded in their trust. For example, it is extremely common that when you refinance your home, the lender will require you to pull the property out of your living trust to fund the loan. After escrow closes, people often forget to put the property back into their trust and then, when they pass away, they have a piece of real property out of their trust that requires a probate action to put it back in the trust.
Problems like this can be avoided by many easy steps. The most obvious and least expensive way to do this is to be sure all of your assets are funded in your trust and to have an annual trust review. Another important step really goes back to the formation of your estate plan and having the proper contingencies in place. This is in the drafting language in the living trust and all the supporting documentation to your living trust. With proper planning and evidence, there are ways to petition the court to transfer assets back into your living trust, even after your death, without a formal, lengthy, and expensive probate proceeding. To find out more about how you can ensure your living trust will avoid probate, call Amy Alvis at Alvis Frantz and Associates, A PC at (925) 516-1617.
HAVE A LEGA L QUEST ION YOU WANT TO SEE ANSWERED HERE?
Go to our website http://www.alvisfrantzlaw.com/ and “Contact Us”.
Disclaimer: The information provided is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to your particular issue or problem. Use of this information or any related information does not create an attorney-client relationship. The opinions expressed are the opinions of the individual authors and does not reflect the opinions of any firm or attorney.
One primary reason for this is that when people create their living trust, especially when they try one of the “do it yourself” methods, they fail to properly “fund” the trust. What this means is that they do not re-title all of their assets like real estate, bank accounts, and brokerage accounts into their living trust.
Another reason for this is that people simply fail to review their trusts and assets on a regular basis to ensure that they are still funded in their trust. For example, it is extremely common that when you refinance your home, the lender will require you to pull the property out of your living trust to fund the loan. After escrow closes, people often forget to put the property back into their trust and then, when they pass away, they have a piece of real property out of their trust that requires a probate action to put it back in the trust.
Problems like this can be avoided by many easy steps. The most obvious and least expensive way to do this is to be sure all of your assets are funded in your trust and to have an annual trust review. Another important step really goes back to the formation of your estate plan and having the proper contingencies in place. This is in the drafting language in the living trust and all the supporting documentation to your living trust. With proper planning and evidence, there are ways to petition the court to transfer assets back into your living trust, even after your death, without a formal, lengthy, and expensive probate proceeding. To find out more about how you can ensure your living trust will avoid probate, call Amy Alvis at Alvis Frantz and Associates, A PC at (925) 516-1617.
HAVE A LEGA L QUEST ION YOU WANT TO SEE ANSWERED HERE?
Go to our website http://www.alvisfrantzlaw.com/ and “Contact Us”.
Disclaimer: The information provided is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to your particular issue or problem. Use of this information or any related information does not create an attorney-client relationship. The opinions expressed are the opinions of the individual authors and does not reflect the opinions of any firm or attorney.
Thursday, September 2, 2010
Have you had "the talk" with your PARENTS?
Reading another blog reminded me how often I am talking with my clients about sharing their estate plan and their health care wishes with their children. But it is easy to overlook the fact that if your parents are still around, you may be the one to have to have that conversation with THEM, as they may not be as open to bringing it us with you.
Your homework for today is to make a date to have this conversation with them. Some of the things you need to find out is:
1. Do they have will, living trust, powers of attorney for financial matters, and health care directives? If the answer is "No" then you need to have them make an appointment with a attorney right away and get something in place" If the answer is "Yes", find out when the last time they have reviewed it and make sure it will still meet their objectives, and if they have a trust, if all of their property is still funded to the trust. If you are not sure, having a trust review by an attorney is a small but very wise investment.
2. If they have them, where are your parents estate plan documents? In the house? In a safe? If so, where the combination? Is it with their attorney? If so, find out who they are and if they still have your parent's documents or have they retired and sold them to another firm? Are they in a safe deposit box? If so - where's the key - is there a power of attorney on hand so that someone will have the ability to access the box to get to their documents?
3. Are you named as the manager of their estate if they become incapacitated? If so, are you okay with that role. If not, do you know who is so that you can contact that person and notify them if/when something happens.
4. Do you know what their health care and end of life wishes are. Having this discussion will alleviate a lot of guilt and uncertainty later.
5. Have they met with a tax planner to identify an estate tax or income tax needs they may have and if so, have they addressed those objectives with that planner.
Spending a bit of time going over these questions with your parents can help identify what needs to be done now to reduce the stress, anxiety and financial burdens of having to manage their estate later from the lack of proper planning and estate plan maintenance.
Disclaimer: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.
Your homework for today is to make a date to have this conversation with them. Some of the things you need to find out is:
1. Do they have will, living trust, powers of attorney for financial matters, and health care directives? If the answer is "No" then you need to have them make an appointment with a attorney right away and get something in place" If the answer is "Yes", find out when the last time they have reviewed it and make sure it will still meet their objectives, and if they have a trust, if all of their property is still funded to the trust. If you are not sure, having a trust review by an attorney is a small but very wise investment.
2. If they have them, where are your parents estate plan documents? In the house? In a safe? If so, where the combination? Is it with their attorney? If so, find out who they are and if they still have your parent's documents or have they retired and sold them to another firm? Are they in a safe deposit box? If so - where's the key - is there a power of attorney on hand so that someone will have the ability to access the box to get to their documents?
3. Are you named as the manager of their estate if they become incapacitated? If so, are you okay with that role. If not, do you know who is so that you can contact that person and notify them if/when something happens.
4. Do you know what their health care and end of life wishes are. Having this discussion will alleviate a lot of guilt and uncertainty later.
5. Have they met with a tax planner to identify an estate tax or income tax needs they may have and if so, have they addressed those objectives with that planner.
Spending a bit of time going over these questions with your parents can help identify what needs to be done now to reduce the stress, anxiety and financial burdens of having to manage their estate later from the lack of proper planning and estate plan maintenance.
Disclaimer: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.
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