Trust & Estate FAQs
How do I Protect My Children's Inheritances?
An effective way to protect your children’s inheritances involves establishing a Revocable Living Trust to have the children receive their inheritances through your Revocable Trust. This allows for your child to receive his or her inheritance within the Trust and, as a result, the inheritance can be protected against creditors, divorce, and lawsuits.
With a Last Will and Testament, assets that you leave to your children are generally distributed to them outright. This means that when the children receive their inheritances, they often deposit it into their own personal bank accounts and as a result the inheritances becomes exposed to any creditors, divorce proceedings, etc. If the will does contain a Trust, that Trust would be subject to the Probate procedures, and much of the benefit of a Trust would be frustrated.
If you want to ensure that what you pass on is protected, an effective way to protect yourself and your family is by setting up a Revocable Trust.
What is a Durable Power of Attorney vs. Health Care Proxy?
A Durable Power of Attorney is a legal document that allows you to give someone of your choice the authority to act on your behalf without a Court order. With a power of attorney, the person that you appoint will be legally permitted to take care of certain matters for you in the event that you are unable to do so.
For example, it allows the individual to pay your bills or sell your house in the event that you are unable to do so yourself. This trusted person that you name will be called your “Attorney-in-Fact.”
A Health Care Proxy allows you to appoint an agent to make medical decisions for you if you are unable to do so yourself. Your Health Care Agent will work with the doctors and nurses to ensure that you receive the medical treatment that is recommended by your medical team. In other words, your health care agent can assent (or not) to the proposed medical care if you cannot assent to the recommendations. It is important to discuss your wishes with your Health Care agent so that he or she is aware what you would want under particular situations.
Each of the above documents is for different situations but is equally important. It is important that every person ha each of these documents in the event of incapacity or unavailability.
Do I Need a Will or Trust?
A Will is the legal document that allows you to distribute your property to those you choose. However, a Will has to go through Probate Court to be validated, which can be very expensive and time consuming. Furthermore, a Will comes into play only after a person has deceased, while a Trust can act to protect assets both during and after a person’s lifetime. While a Will may be a great start to a basic estate plan, many may want to consider setting up a Revocable Trust plan to better insulate assets for the benefit of the family.
A Revocable Trust in many ways replaces your Will, and it does not generally get filed in the Probate Court. While a Will becomes public record, a Trust is designed to remain private. Furthermore, a Trust can act to protect your financial affairs while you are living; for example, in the event that you become incapacitated.
A Trust can also save you on estate taxes, and protect your childrens’ inheritances from ex-spouses or creditors. It is important to speak with an experienced estate planning attorney to create an estate plan specific to your needs.
What is Probate and Should I Consider a Trust?
Probate is the legal process of transferring ownership of assets after death or incapacity. Probate assets are assets in the name of the person who passed away that were not jointly owned or did not have a named beneficiary. If a person dies owning probate assets, a legal proceeding in the Probate Court will be necessary to transfer these assets to the individuals named in the deceased person’s Will, or under the intestacy laws of the Commonwealth (if there was no Will). This can be a very lengthy and expensive process.
A Trust is an important tool to avoid Probate. During your lifetime, the assets in a Living Trust remain under the complete control of the person or couple establishing the plan. The plan should essentially be in the background: no change to income tax forms or access to assets. The Living Trust simply acts to better insulate your assets from Probate and Estate taxes, and more thoroughly protects your family inheritances.
With a properly drafted and implemented Trust, one will be able to avoid Probate, and also have assets managed during your children’s lifetimes, if necessary. You will be able to determine if a Trust is appropriate for you by consulting with an experienced estate planning attorney.
What Kind of Assets Do Not Go Through Probate Court?
In general, all the property that the deceased owned at the time of death will be part of the Probate estate. However, there are some exceptions that do not go through Probate.
One exception is if you have a properly funded Trust. A Trust that is funded properly allows you to avoid Probate court. This is because you transfer all assets from your name to the name of the Trust. As a result, your Successor Trustee will be responsible for distributing your assets that were funded into the Trust to your beneficiaries. This helps you achieve your goal of avoiding Probate.
Another exception is property held in joint tenancy. A jointly owned asset will transfer to the surviving spouse or whomever the property was jointly owned with. Also, assets with named beneficiaries such as insurance policies, IRAs and annuities will also avoid Probate as long as the beneficiary is alive.
Remember you can always keep your assets from going through probate by transferring your assets into a Trust. This will help eliminate the need for your assets to go through Probate.
Can I Leave My Son or Daughter Out of My Will or Trust?
Yes, it is possible to keep your daughter or son out of your estate planning documents, including a Will or Trust. If a parent does not mention a child, the law assumes that the child was unintentionally forgotten in the plan, and the child has right to an inheritance. It is therefore critical that a parent specifically mention a child who is to be omitted from a plan.
Different attorneys use different language to make it extremely clear that the client wishes to exclude one or more specific people from his or her estate plan. For example, it will be something similar to “My failure to provide in this Will for XXXX is intentional and not the result of any accident or mistake.”
These steps will help prevent one from arguing in court that he or she had been forgotten or that there was a mistake in the will.
What is Administration of My Estate?
Administration of an estate involves the distribution of properties to the beneficiaries or heirs, the collection of assets, and payment of liabilities and Estate taxes. It is often conducted under some degree of Probate Court authority and supervision but there are also different procedures that are available.
There is a procedure known as Voluntary Administration or “quick Probate” that is available if a person held less than $25,000 in probate assets plus an automobile, and if that person did not own an interest in real estate.
If you own more than the above amounts of Probate property at the time of your death, the Probate process will be more formal and extensive and in most instances it will take more than a year to complete a Probate proceeding.
Proper estate planning often avoids the Probate process altogether. We are able to assist you in created an effective Living Trust. Furthermore, if you have a loved one who passed away without a Will or with a Will, we have attorneys who can help you through the Probate administration process.
What Does it Mean to "Fund" Your Trust?
To fund a Trust is an important step in setting up your Trust. To “fund a Trust” simply means to connect your assets to the Trust. In order to do this, it is important to notify (with the assistance oy your attorney) the financial institutions you work with. This is something that the law firm you work should assist you with.
Please be aware of the following: Many people fail to fund their Trust properly and this is a major disadvantage. Without a properly funded Trust, many assets will have to go through Probate Court, and in that case a client does not get the full benefit of the Trust. That is why is it important to get all of your assets into the Trust by changing the title of your assets to the name of your Trust.
You can begin by working with a law firm that will assist you in funding your Trust after it is signed and executed. It is important to fund the Trust in short order in order to ensure that your Trust is working. While there is no specific time limit for funding your Trust, it is advised that you fund it initially and ensure that any new accounts created later on are created in the name of the Trust.
What Assets can I Put into My Trust?
- Bank Accounts
- Personal Property
- Real Estate
- Life Insurance Policies (by changing the name of your beneficiary or contingent beneficiary designation – based on your particular situation – of this asset to the Trust)
- Retirement Accounts (IRA, 401k, etc., again by changing the beneficiary or contingent beneficiary designation – based on your particular situation).
Do I Need to Execute a Health Care Proxy?
Yes, Health Care Proxy’s are not just for the elderly. Generally, once someone turns eighteen years of age, his or her parents are no longer entitled to make health care decisions on that person’s behalf. Furthermore, a parent of a child over eighteen is often not even allowed to obtain their son or daughters confidential medical information without specific authorization from the child.
Therefore, once an individual turns eighteen years old he or she should highly consider executing a health care proxy and information authorization (or HIPAA form) in order to allow a parent (or other trusted person) to make medical decisions on their behalf and access their medical information if he or she is unable to do so. While your Health Care Proxy may never need to be used, it is important that you have one just in case something were to happen. You are able to appoint an Agent that you trust to make these decisions for you.
We are able to assist you in setting up a Health Care Proxy and a HIPAA release form so that you are fully protected in the event that you are unable to make medical decisions for yourself.
I have Minor Children. Why Do I Need an Estate plan?
For people with children under eighteen years of age, having an estate plan tailored to protecting children is of the utmost importance. This is because a Court will otherwise have no idea who you wanted to take care of your children in the event that both you and your spouse have passed away.
With the creation of an estate plan, you are able to nominate a Guardian to care for your children in the event that something were to occur.
Furthermore, with the creation of a Trust, you can appoint a Trustee to manage your assets for your minor children in the event that you were to pass away. This allows for someone whom you Trust to manage your money for the benefit of your children, without having to get Court approval.
We can help create a Trust to meet your needs and protect your children.