Putting your house in order:
It is a common misconception that estate planning is important for those only with money or who are advanced in age. This myth is a cruel deception. Everyone can benefit by creating an effective estate plan.
Arranging for the distribution of one's wealth is what estate planning is all about. A critical part of estate planning is creating documents that outline your wishes for distributing your wealth after you die. Every individual has an estate plan. If you do not have a formal written will or trust, your estate plan is created out of default. Every state in America has laws governing the distribution of property when a person dies without a Last Will and Testament (i.e., dies intestate). The question is not whether you will have an estate plan, but whether you will have an estate plan of your own selection or one imposed upon you by law.
Traditional estate planning involves creating a will. By preparing a will, most people feel they have effectively safeguarded their family's inheritance. However, this is often a false "peace of mind". A Last Will and Testament outlines your wishes about the distribution of your property after death, but testamentary documents such as wills usually require probate. In preparing only a will, you may be forcing your loved ones through months, even years, of agony in the probate court.
Probate: What Is So Bad About Probate?
Disadvantages of Probate
Time Consuming: The probate process can take a few months or as long as several years to complete. The average probate takes about 24 months. In complex situations, probate lasting 24 months to three years is not unusual.
Costly: Attorney's fees to probate an estate can run into thousands of dollars. In addition, the executor, inheritance tax referee and other officers of the court must be compensated. All related probate fees must be paid before any of the descendant's assets are distributed to the family. The average cost of probate is 4-8% of the gross estate.
Loss of Control: The probate court controls the entire process. Someone "on the outside" will tell your beneficiaries who gets what and when.
Lack of Privacy: All probate transactions are a matter of public record. Anyone can find out the size, contents and beneficiaries of your estate. This can be embarrassing and frustrating for your family, create disputes, and expose your family to unscrupulous solicitors.
Bottom Line - A living Trust is a way to protect your family from the costs and time lost in probate, not to mention the stress. Probate is time consuming, inconvenient and expensive. Even at best, probate is an unpleasant, emotionally trying experience. At worst, it can be a nightmare.
Joint Tenancy: Why Joint Tenancy Is A Mistake?
Many times people try to avoid probate by holding their assets in Joint tenancy which is the method of putting someone's name (e.g., a child) on property or accounts.
Joint tenancy will avoid probate as long as one of the joint tenants survive. If you are married taking title to your assets as joint tenants with rights of survivorship, all assets are automatically transferred upon the death of one spouse to the surviving spouse and there is no probate.
For numerous reasons, joint tenancy with rights of survivorship should only be used between married individuals. The pitfalls of ownership as joint tenants with someone other than your spouse include:
- Your property is exposed to the creditors of your joint owner.
- You may create gift tax consequences when the asset is transferred.
- As a joint owner, you give up some control over your property. (Both joint owners must approved every transaction
regarding the property.)
- If one joint tenant becomes incapacitated and unable to act, the other must go to court and become appointed
as "conservator" before being able to do anything with the jointly owned assets.
- From an income tax standpoint, the death of one joint tenant permits a stepped up cost basis on only one-half of the
- Probate is required when the surviving joint tenant dies.
Fortunately, there is a simple and proven alternative - the Revocable Living Trust. This legal document is used to plan and organize your estate, much like a will, except that it avoids probate and prevents the court from controlling your assets upon your death, or if you become incapacitated.
When creating a Living Trust you simply re-title your major assets like bank accounts, stocks and real estate. For example, the names on these assets would change from "Bob and Mary Smith" to "The Bob and Mary Smith Family Trust." You retain complete control of everything just like before; only you can sell the home and other assets. By creating a Living Trust you can save your heirs thousands of dollars in legal and other fees and unnecessary delays that can go on for months or even years. In addition, you can eliminate much of the emotional strains that can be caused by your death and the settling of your estate.
If you can't conduct your affairs due to mental or physical incapacity (e.g., Alzheimer's, stroke, heart attack) only a court appointed conservator can sign for you - even if you have a will. This court process can be very expensive. The court, not your family, controls how your assets are used to care for you. This public process can be embarrassing, time consuming and difficult to end if you recover.
Advantages of a Trust vs. a Will:
Apart from avoiding probate, there are other advantages to using a Revocable
If an illness or accident leaves you incapacitated, your successor trustee can
handle your financial affairs with-out the need of a court appointed guardian
If the beneficiaries of your trust are minor children or others who might not
use an inheritance as you intend, the trust can continue to hold the assets
until they reach a more mature age.
If you own real property in more than one state, you avoid the expense, time and hassle of multiple probate proceedings.
By using the "A-B" provision in a trust, a husband and wife can pass the maximum estate tax exemption to their heirs.
Disadvantages of Trusts:
All accounts need to be retitled, deeds and other transfer documents must be prepared transferring the trustor's assets to the trust, and beneficiary designations need to be changed to the trust which can take a few hours of your time.
The use of a revocable living trust requires more ongoing monitoring to ensure that assets remain in the trust and that newly purchased assets are titled in the trust. For example, a trustor who moves a CD (perhaps to obtain a better interest rate) must remember to advise the new institution to title the new account in the trust. We do regular reviews in your home at no charge to keep you trust properly updated.
Are these types of trusts new?
No. Trusts have existed for hundreds of years.
Do I need to file a special tax return?
No. As long as one or both of the trustees are alive.
Does my trust need to be recorded?
No Most states do not require these trusts to be recorded. Simply sign and notarize the document to make it official.
Will having a trust prevent me from selling or refinancing my property?
No. Selling your property is handled the same way as before. If you are refinancing, some lenders may require that you take the property out of the name of trust during the loan process, but we will prepare the deeds (at no charge) to put back into the trust.
Cost & procedure is covered by What does it Cost... and Our Cost & Procedure, and finally, all of the documents and services previously stated are included as part of our complete trust package. Since 1987, The Law Offices of C. R. Abrams has assisted thousands of people, just like you, in understanding the benefits of setting up a trust. Our fees are simple regardless of the complexity or simplicity of your estate.
Free amendments for as long as you are alive. The one time fee is due at this time. Your trust will be completed in 3-4 weeks after we receive your worksheet. Free notary service will be provided.
Benefits of a Living Trust:
- Avoids probate at death, including multiple probates if you own property in other states.
- Prevents court control of assets in the case of incapacity
- Provides maximum privacy
- Quicker distribution of assets to beneficiaries
- Assets can remain in trust until you want your beneficiaries to inherit it
- Can reduce or eliminate estate taxes
- Inexpensive, easy to set up and maintain
- Can be changed or cancelled at any time
- Difficult to contest
- Prevents court control of minors' inheritance
- Can protect dependents with special needs
- You only need to set it up once during your lifetime
• Avoids probate in all 50 states, even if you move to a different state from where you created it