August 12, 2018










Living Trust Basics

When most people plan to distribute their property at death, they think of a simple last will and testament. At death, the will goes through a legal process known as probate. The probate process is public, with the executor’s actions reviewed by the probate court. In most cases, the process takes several months; problems can turn the timeline into years of expensive legal battles among heirs. Probate can incur significant legal fees for “administrative costs.” And the only end-of-life issue addressed by the will is “distribution of property.”

A Living Trust Is Private

A living trust is drafted and administered privately, usually within the family. At first, the settlor often serves as his own trustee, retaining full control of the property. At the settlor’s death, disability, or resignation, the appointed successor trustee takes over as trustee.

Assets and Administration Stay “In the Family”

While most probates require immediate liquidation of assets and distribution of the proceeds, living trust assets can be retained by the trust if it is financially prudent to do so. Potential problems such as spendthrift heirs and anticipated bickering among siblings can be addressed by provisions of the trust.

Distribution Takes Minutes, Not Months

A successor trustee can assume control immediately in an emergency. While the probate process requires banks to put an immediate hold on an individual’s bank accounts at death, bank accounts in the name of the trust require only proper documentation of the successor trustee’s appointment and the signing of a signature card. Thus funds will be immediately available for funeral and other expenses.

Save Thousands of Dollars in Administrative Fees

Living trusts aren’t just for the very rich. For example, a modest $100,000 estate in Indiana going through traditional probate incurred $35,000 in “administrative fees,” leaving $65,000 for distribution to heirs eight months later. Another $100,000 estate (same state, same extended family) titled in a living trust passed in its entirety to the single heir the same day.

Most Living Trusts are a Package Deal

The living trust package usually includes several documents: the living trust, a “pour-over” will leaving non-titled assets to the trust, a durable power of attorney, healthcare directive and appointment of healthcare representative, as well as a Living Will with end-of-life instructions. The living trust package allows you to prepare for disability as well as death.

Because living trusts include more extensive documentation and bring no future probate administrative revenue potential, they are more expensive up-front than a simple will. However, most people feel that the ultimate savings in time and money make living trusts a worthwhile investment.

Want to Learn More about the Benefits of a Living Trust?

Long Island–based elder law attorney Andrew Lamkin can help you consider every option to best provide for your family when planning your estate. You can receive a free consultation by calling the Law Office of Andrew Lamkin, P.C., at 516-605-0625, or by completing our Contact Form.

How To Successfully Plan For Old Age

We are all going to get old. By planning accordingly, we can assure that our golden years are worry-free, at least in some aspects, and that our children will know exactly what our wishes are.

Finances

Ideally, your retirement plan for your old age should begin well before you’re considered old. The best-case scenario would involve being able to start saving money for your retirement before you reach your thirties. However, the majority of twenty-somethings don’t tend to think of such things, and starting your retirement fund a bit later won’t necessarily be disastrous. Taking advantage of your employer’s 401(k) plan, opening an IRA, and having a separate savings account can go a long way when it comes to ensuring financial stability for your golden years.

Housing

The years slip by fast, so it’s wise to take a look at your current housing situation and determine where and how you want to live once you reach old age. If you decide to downsize in order to save on expenses, there’s nothing and no one stopping you. However, if the thought of leaving your beloved home is agonizing, you can stay where you are and reap the rewards of being a homeowner. Once you do start nearing retirement age, though, if you find that your finances are not up to par, you may consider one of those popular reverse mortgages to supplement your income and/or savings. Be aware, though, that like anything else, reverse mortgages have their benefits as well as their downside. Only you can decide if such a move is right for you.

Medical Care

If you haven’t done so already, clarifying what types of medical care you want as you enter old age and draw close to the end of your years is a wise move. By having a living will, also known as an advance directive, you make it clear to your loved ones and health care providers whether you want any drastic measures taken to extend your life in the case of a severe terminal illness, or if you lapse into a coma or other vegetative state. By specifying your wishes, you relieve your loved ones of the anguish of having to make such a decision at time when they are already under extreme stress.

Funeral Planning

While no one likes to think about it, drawing up a will and pre-planning your funeral can be a wise decision for those entering their golden years. Death is inevitable; by specifying your wishes to your loved ones when it comes to your death, you relieve them of at least one burden during this trying time. They will definitely thank you for it.

Planning for Later Life but Worried You Haven’t Thought of Something Important?

An elder-law focused attorney can bring you knowledge in experience in planning your estate, creating your will or trust, and arranging for long-term care in later life. Call the Long Island offices of Andrew Lamkin today at 516-605-0625 so you can rest assured that you’ve considered all aspects to make sure that you and your loved ones are taken care of the way you desire.

Read More at :
http://money.usnews.com/money/blogs/the-best-life/2012/11/26/dont-ignore-these-old-age-needs
http://www.cmpcc.org/planning-age/

Guidelines to Inheritance Laws: Who Gets What and Who Gets Nothing

Inheritance can be a tricky subject. Dealing with inheritance issues is often unexpected, and surviving family members may not have a solid grasp of how the process works or who gets what. Some family members may be expecting a huge windfall upon a relative’s death, while others may be worried that they will get nothing. The following guidelines are a base point to help understand how this legal scenario might play out, but there are many factors.

Common Property or Common Law

One major factor surrounding inheritance is the state where the deceased lived. The states of Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin, and Alaska follow “common property” law. This simply means that, regardless of will, a current spouse is automatically entitled to half the value of all assets earned during the marriage, since that person is already considered to be the owner of half of all assets. It is important to note that this law supersedes anything written in the will unless the spouse has signed a legal document to the contrary. Also important is that the law applies only to the current spouse. Ex-spouses are not in any way included nor are they entitled to any inheritance unless the will states otherwise. Finally, in order for the common property law to apply, the spouse must argue the case in court. If no case is brought forward in a timely manner, then the will takes automatic precedence.

This is best portrayed with an example. Ben has recently passed. He is survived by his current wife, Jane. Ben had two children with Jane and another son with his previous wife, Kelly. Ben’s estate is valued at $600,000. His will states that his two children from Jane each get $200,000. His other son gets $100,000 and his wife Jane gets $50,000 and his previous wife Kelly gets $50,000. If Jane does nothing, then the estate will be divided as written. However, if Jane lives in one of the common property states, then she can automatically argue that she is entitled to at least $300,000 of the estate. The court would be obligated to provide her with that $300,000, and then decide how the remaining amount would be divided, following as closely to the will as possible.

In all other states, common law applies. This can vary, although most common law states provide an obligatory one-third of assets to the surviving spouse regardless of will. Again, the spouse must argue this in court if the will provides less than this amount.

Children and Inheritance

Children have no automatic right to inherit. They must be named in the will. However, there are some legal protections to prevent children from being automatically excluded or disinherited. One common protection involves a child born after a will was written and not revised to include that child. The law assumes the parent intended to include the child, but simply overlooked revising the will. The court then attempts to adjust the inheritance to include the new child by the same proportion as other children. Similar extensions exist to include children of deceased children under the idea that the inheritance of the deceased child would have naturally passed to them.

Want to Know More about Inheritance Law?

If you are a surviving relative involved in an inheritance dispute, or are writing your will and want to learn how to avoid them, it is best to consult a qualified attorney. Andrew Lamkin focuses his practice on elder law, estate planning, and probate. For a free consultation, call 516-605-0625 today.

Read More:

http://www.nolo.com/legal-encyclopedia/inheritance-rights-29607.html

http://estate.findlaw.com/wills/inheritance-law-and-your-rights.html

What is a Guardian Responsible For?

Most of the time, a guardian is someone who is appointed to take care of a minor child. In some instances, a guardian may also be responsible for taking care of an adult-aged person who is incapable of taking care of himself or herself. Additionally, the guardian is also responsible for handling the person’s assets. Sometimes, the guardian may be referred to as a conservator.

Most times, a guardian will be appointed to look after someone at the discretion of the court; however, in traditional circumstances, a guardian is someone who is the parent of a child. On the other hand, it is possible for the court to take away the rights of a parent if the parent is believed to be taking improper care of a child(ren). In addition, it is possible for someone to be appointed as the guardian of someone if the appointing was left in a will. A person can also choose for himself or herself, if of legal age, as to who his or her guardian will be in the event that he or she suffers from some type of severe disability.

The main responsibility that a guardian has over his or her ward(s) is that the latter is taken proper care of, including providing shelter, clothing and food. The guardian is there to ensure that the ward has access to education, health insurance and other types of benefits. If the ward has some type of property, banking account and/or assets, the guardian will manage those as well.

Sometimes, the guardian may or may not have access to the banking account of the ward. For example, if a child has a savings account set aside for him or her in the amount of $1,000,000, the guardian may be granted access to only 10 percent of the funds, leaving the remaining 90 percent to the child once he or she turns 18.

When a guardian is given the responsibility to take care of a minor child or one who suffers from no disability, the guardian’s responsibilities end when the child reaches 18 years of age. On the other hand, there are instances when a guardian is responsible for a ward for his or her entire life.

Sources:
http://wills.about.com/od/planningfordisability/tp/responsibilities.htm
http://www.courts.ca.gov/1211.htm

Top 5 Ways to Avoid Disputes in Your Family over Your Will

Planning an estate can be stressful. What is often worse, though, is the state that the living family is left in after you pass. If your estate is not carefully divided, a family can quickly turn on itself. These five tips can help to save you from family turmoil:

1. Meet with an Attorney

A few wrong words can ruin a will, and a will constructed without an attorney can have trouble standing up to probate. If you want to make sure that you minimize family squabbles, have an experienced estate planning attorney help you put together your will. This will lend it a greater air of legitimacy and give you a chance to put together something that can withstand your death.

2. Discuss It

It is always important to discuss your estate before your death. If it is important to you that a specific person receives an item, let the person know. Likewise, explain to any family member left out of the will or who will receive minimal inheritance why this is being done; this will allow those family members to know your reasoning and might stop them from taking it out on the rest of the family.

3. Grouping

It might be wise to set up your will to leave gifts to a class of people rather than to individuals. You might want to leave your estate in a certain percentage to a spouse and then your monetary assets in equal percentages to your children or grandchildren. Equality has a wonderful way of ending arguments among survivors, even if the resulting inheritance is not exactly what was expected.

4. Consistent Updates

It is also wise to update your will consistently. New grandchildren might be born or a marriage might dissolve in life, but you might have clauses in your will that have not reflected these changes. If you want to stop fights before they start, try to update your will around the time of any major life event. That will, at the least, keep things current.

5. In Terrorem

Finally, there is the “nuclear option” of estate planning – the in terrorem or “no contest” clause. In some states, an in terrorem clause can be used in a will to punish those who would challenge the will and are not successful. These clauses will cause an individual to be removed from the will completely or to only receive a smaller share of his or her inheritance. Given that the vast majority of will challenges are failures, this is often a potent warning. Many people want to include an in terrorem clause when they are disinheriting a family member. When using an in terrorem clause in this instance, it a good idea to leave a small amount (i.e. $10,000) to that beneficiary so that they have something to loose by contesting the will.

SOURCES:
Bove, A. 2005. The Complete Book of Wills, Trust and Estates, 3rd Edition.

Everything You Wanted to Know About Special Needs Trusts

By creating a special needs trust, you can establish a firm financial future for someone with disability. If you currently provide financial support for a child, grandchild or other individual who needs special assistance, you have the option of transferring assets, such as real property and funds into a special needs trust. It will secure long-term support for your loved one. In addition to receiving the financial benefits of the trust, the beneficiary may also continue to be eligible for governmental health care benefits as well as other governmental financial benefits for individuals with disabilities. Hence, the value of the trust assets will not affect the beneficiary’s eligibility for government assistance.

The beneficiary of the special needs trust is the individual who will receive the trust property. There is no age requirement for the beneficiary. Thus, you can establish a trust for an infant, child, elderly individual, spouse and the like.

When you set up a special needs trust, as the creator of the trust, you are the grantor or settler. The trust assets are transferred in the trust, and a trustee is required to manage the property in the trust. With a special needs trust, you can designate yourself as trustee in addition to naming a successor trustee. Upon your death or if you resign as trustee, the successor trustee will occupy the role as the trustee and manage the trust property.

The trustee is required to ensure that the trust property is distributed to the beneficiary in accordance with the terms of the trust document. The person who creates the trust must create a trust document, which determines how the property will be distributed to the beneficiary. Many people create special needs trust to provide for shelter and income for individuals with disabilities. The beneficiary does not have the power to terminate or revoke the trust. Also, the beneficiary cannot directly withdraw the funds from the trust. The trustee is the only person who has the power to use the trust property, but only to the extent that is allowable by the trust document.

When you initially create a trust, you can begin transferring property into the trust. You can also allow other people to transfer assets into the trust. When you create an estate plan, you can also transfer additional property into the special needs trust to provide support for the beneficiary upon your death.

More here:
http://www.nsnn.com/frequently.htm
http://www.disabilityrightswa.org/special-needs-trusts