Showing posts with label Estate Administration. Show all posts
Showing posts with label Estate Administration. Show all posts

Wednesday, October 20, 2010

Successor Trustee? Tips on Avoiding Potential Liability

To help you avoid personal liability in connection when serving as trustee, follow three rules:

  1. Document all transactions, including any reasons for making or not making distributions. While you may perceive the risk of getting sued as low, you cannot ignore the possibility. When you are acting as a trustee and are essentially in control of someone else's assets, you can easily become the focus of any anger or frustration that beneficiaries may feel.


  2. Keep beneficiaries well informed of trust business. Be friendly and cooperative. It is much more difficult to sue someone with whom you have a good relationship. Maintain carefully documented files. Seek advice from experts.


  3. Consider the dynamics of a lawsuit against a trustee. Judges and juries alike tend to have more sympathy for the party who appears to be “right.” If you have sloppy records (or have none), or if you have not sought help when you came up against something beyond your expertise, or if you have not provided beneficiaries with information that you should have, you will not be given the benefit of the doubt.

Thursday, July 8, 2010

Funeral Arrangements - Things to think about

  1. What is important to you (that your family or that me as your advisor) should know about how your funeral arrangements should be conducted? Or, how do you picture the most appropriate final arrangements?
  2. What are your feelings regarding burial vs. cremation?
  3. Is it important to you to have a traditional funeral? Should there be a viewing?
  4. What might need to be purchased to fulfill your final wishes?
  5. What do you believe these final arrangements will cost, and how do you intend to pay for them?
  6. Did you know that Medicaid requires the spend-down of all liquid assets (including your cash value life insurance and your CDs), but the state actually encourages you to pay for a funeral with a prepaid funeral plan?
  7. Would you be interested in setting up a prepaid funeral plan?

Friday, April 9, 2010

Advisors News | Industry news | ADVISORS - Planning the (blended) family business

Estate planning done badly is one of those areas where only the lawyers make out well in the end. This is particularly true when it comes to tax and estate planning for blended families

Read More:  Advisors News Industry news ADVISORS - Planning the (blended) family business

Using life insurance in business and estate succession planning

In years past, life insurance was sold and thought of as burial insurance. Many individuals today still use it primarily to pay for burial or final expenses as these costs can be a financial burden on families. There are several other good reasons to purchase life insurance, including replacing lost income, paying outstanding debt, and planning for children’s education.



Read More:  The Prairie Star: Montana Ag Newspaper

Sunday, March 21, 2010

Certified Copies of Death Certificates

Reprint from the Strauss & Associates, P.A. Website Client Newsletter

If you are the legal representative, trustee or executor, it will be necessary for you to secure certified copies of the death certificate in order to wind up the decedent’s affairs. For example, you will need a certified copy of the death certificate in order to gain access to:
  • Life insurance proceeds
  • Bank accounts
  • Pensions, IRAs, 401(k)s and other retirement benefits
  • Stocks, bonds, CDs and other investments
  • Property titles and deeds
  • Vehicle registrations, titles and transfers of ownership
  • Home mortgages and other loans
  • Other types of insurance (car, house)
You also may need copies to alert the decedent’s creditors and debtors of the death. Most funeral homes offer copies of the death certificates as part of their services. You should inquire with the funeral home to find out what its policy is and the fees associated with it.

The funeral director, with the aid of the medical examiner or physician, will complete the death certificate and submit it to the state's appropriate Vital Records office. If you receive a phone call or other correspondence from someone claiming to work for a government office and needing information from you to complete a death certificate, be wary — it is most likely a scam.

If you did not get a copy or enough copies of the death certificate from the funeral director, you can get certified copies from your state’s Office of Vital Records (a division of the state’s Department of Public Health). While death records are public records, meaning any member of the public can go to the state office and view them, only certain people are allowed to purchase certified copies of the death certificate. These people generally include immediate family members (spouse, parents, adult children) and legal representatives (attorneys, executors, trustees, powers of attorney). In some states, extended family members may be eligible if they had a direct relationship with the decedent.

In addition to meeting the eligibility requirements, you also will have to provide certain information to the Office of Vital Records as part of your request. This information may include the decedent’s full name, date of birth, date of death, city and county of residence at time of death, Social Security number and the decedent’s parent’s names, including the mother’s maiden name. You also may have to provide the name of the funeral director as well as an explanation of your relationship to the decedent. Finally, you will have to provide proof of your identity with a state-issued identification card, such as a driver’s license or passport.

Monday, March 1, 2010

Estate Administration

Reprint of the February 2010 Strauss & Associates, P.A. Website Client Newsletter


Estate administration involves collecting a decedent's assets — particularly personal assets — and using them to pay debts, taxes and costs of administration until all the debts and costs are paid or the assets are exhausted. The remaining assets are distributed in accordance with the decedent's will or, in the absence of a will, by intestate succession, as provided by state law.

In many states, legislatures have adopted some version of the Uniform Probate Code (UPC), which was designed to simplify the estate administration process. Due to the real or perceived complexity of the estate administration (or probate) process, many people have sought legal advice on how to avoid probate. In this, as in any complex legal matter, consulting an attorney with experience in estate administration is essential.

An estate may need to be administered in more than one state. Generally, a decedent's estate is probated or administered in the state where he or she resided at the time of death. However, because state law governs the transfer of real estate it may be necessary to do an ancillary proceeding to probate for any real estate the decedent owned in another state. An ancillary proceeding is a scaled-down probate proceeding, which governs only the assets located in that state.

While probate proceedings can be extremely formal, they can also be relatively informal. An informal probate proceeding usually involves filing some basic paperwork, having the court appoint someone to manage the estate, paying the debts, distributing the assets and having the court approve the distribution. The court may never require a hearing, but only a review of the papers filed.

In other instances — such as when a will is disputed — a formal probate proceeding may be required. A formal proceeding involves more court oversight and usually requires one or more court hearings. In some states, a probate proceeding can be formal in parts and informal in others. For example, the matter may start out formally, with a court hearing to appoint the personal representative, but end informally, with a paper filed with the court detailing how the assets are to be distributed.

It may be possible to avoid the probate process for a decedent who owned few assets. A "small estate administration" is available in many jurisdictions. Usually, in order to qualify for a small estate administration the decedent's assets must not include real estate and must be worth less than a threshold amount determined by the state. If a small estate administration is possible, the parties who are entitled to receive the decedent's assets may collect those assets by way of an affidavit. Even in a small estate proceeding, though, the decedent's creditors need to be paid from the assets.

Generally, the first task in a probate proceeding is appointing a responsible party to manage the estate. This person is usually called the personal representative, but may also be known as the "executor." The personal representative may be an individual or a company, such as a bank. The personal representative may have been nominated by the decedent in the will. In the absence of a will, the court will usually appoint the surviving spouse or another family member. There may be more than one personal representative named.

After being appointed, the personal representative is expected to document all of the decedent's assets. This documentation is often referred to as the inventory. The personal representative must also inform the decedent's creditors that the decedent has died. If the decedent's probate assets are sufficient to pay the creditors, the personal representative will pay them from the estate. If the probate assets are insufficient, the personal representative may need to obtain court approval to determine which creditors should be paid.

Assets left after the creditors have been paid are distributed according to the will. If there is no will, the decedent is said to have died intestate. State laws vary as to how to distribute the assets of an intestate decedent.

The personal representative must also file any necessary tax returns, and may need to bring a lawsuit to collect any money owed to the estate. If the will is contested or there is any other dispute about how to distribute the estate assets, the personal representative may have to "defend" the will in a probate proceeding.

Tuesday, November 10, 2009

Don't Make the Same Mistakes You've Seen in the Headlines

Now is the time to update your existing estate plan, or proceed with implementing a comprehensive estate plan. Why? First, we now know with certainty that the federal estate tax is not going away, and thus we should establish a plan that avoids or at least minimize this voluntary tax.

More importantly, if you don't you just might end up like the host of celebrities who have made the headlines recently because they either had no estate planning or because the planning they did have was woefully out of date or otherwise inadequate.

As the recent celebrity examples demonstrate, estate planning is not just about planning to avoid estate tax. Instead, estate planning is about accomplishing what is important to you and your family, like: passing values to your children and grandchildren; passing property in a way that creates a lasting legacy; and protecting your privacy.

Pending Changes to Federal Estate Tax Law: Does It Really Matter?

As we approach year-end we continue to hear scuttlebutt from Capitol Hill that Congress will enact some estate tax legislation before January 1, 2010. As you may recall, this is "necessary" because under current law we are scheduled to have no federal estate tax for those who pass in 2010. Note, however, that in 2010 the estate tax would be replaced with a system that would tax a greater number of Americans when they sell appreciated assets (like stocks and real estate) - a system that Congress tried once before, but it failed miserably!

The consensus from Washington, D.C. is that we will see a "patch" that simply extends current law through the end of 2010. What will happen then, however, is anyone's guess. The cynics suggest that because 2010 is an election year, both Republicans and Democrats may be encouraged to do nothing. If that happens, the current law will expire, and beginning January 1, 2011 we would revert to a $1 Million federal estate tax exemption and maximum estate tax rate of 55%.

While we don't know the details, the fact that we will have an estate tax means that we should all take steps to minimize or avoid it. In addition, more and more states are enacting separate state estate taxes (usually with much lower thresholds) as a way to generate revenue, so state estate tax will ensnarl many who do not plan to avoid it.

Celebrity Examples of What Not to Do with Your Estate Planning

When it comes to estate planning, it seems that folks generally fall into one of three broad categories: (1) those who have done no planning; (2) those who have done some (often inadequate) planning; and (3) those who have done good planning, but who should have it reviewed and possibly updated. The recent spate of celebrity cases that have been in the news lately serves as a pretty telling primer on these various categories. As you consider the lives and stories of these famous people, how do you stack up? You may find that this winter is a good time to revisit your estate planning to make sure your plan is as it should be.

Leaving It to Chance with No Planning

Steve McNair seemed to have it together. A Super Bowl quarterback, 3-time Pro Bowl selection, and one of football's most prolific passers, McNair was killed at the age of 36. Surely thinking that his whole life was ahead of him, McNair did no estate planning at all, leaving his substantial wealth (nearly $20 Million) to be argued over - publicly - in the Tennessee probate courts. His children, assuming they are given substantial shares of his estate, will not enjoy the gift their father could have given by providing a framework in which they could grow into their inheritance.

When McNair's children turn 18 - the legal age of majority in Tennessee - they will receive their inheritance outright; they will be free to do what they please with the money. Can you imagine turning an 18-year-old child loose with several million dollars?

Even if you don't have millions, do you want your loved ones to be able to do with their inheritance as they please, knowing that you can provide them with predictability and guidance to help them protect and preserve what you leave behind?

Inadequate, or "Do-It-Yourself" Planning

Studies indicate that nearly 70% of all Americans have done no estate planning at all. But even of those roughly 30% of people who have done some estate planning, many have done a very poor job, designing an estate plan that inadequately represents their wishes or worse, causes confusion, delays, and unmet expectations.

Heath Ledger had a will. It was a simple, three-page document created before he made his mark in the film industry and made his millions with his Oscar-nominated performance in the movie Brokeback Mountain. When he died at age 28, his estate and his family had far outgrown his inadequate estate plan. His will provided that his estate should be divided equally among Ledger's parents and his siblings, and failed to provide anything for his infant daughter. Although she will surely ultimately be provided for, by relying on a will (and a very deficient one), Ledger assured his family a legacy of confusion, frustration, and public litigation.

The worst offenders feeding this category are those who sell "one size fits none" form estate planning documents, either online or in stores. These folks sell documents to well-intentioned individuals who are proactive and motivated enough to do something about their estate plan. But the key to this mistake is that it approaches estate planning as a document transaction. Sure you get a "will" or a "trust" and some other documents, but do they really represent your goals? Will they properly instruct your family when they need to? As in Heath Ledger's case we may have only one chance to get estate planning right. Printing and signing documents without thoughtful legal help is a disaster waiting to happen.

Imagine that your child is getting married and you need a new suit. Will you go to the corner discount retailer and pull something off the sale rack? After all, they advertise "always the low price." You'll have a jacket, pants, the whole ensemble. But is that really the right solution for you on this special occasion? Isn't it more appropriate to see an expert who can learn about your tastes, your needs, your best features, and deliver what you really need, something you can be proud of?

By the same measure, buying documents - from a retailer or from an attorney - is not estate planning. Although estate planning requires documents to make a plan legally effective, the art of effective estate planning comes through professional, comprehensive advice that only focused and dedicated estate planning professionals can provide.

Outgrown Estate Plans

Now some time has passed since you bought that new suit for the special occasion. One grandchild, maybe two are born and things have changed. Maybe you've lost a few pounds (or, heaven forbid, gained a few!). What has happened to that nice suit? Sure it's a little musty, but never the worse for wear. But no matter how hard you try, it just doesn't fit like it used to.

Just like a finely tailored suit, an estate plan can get outgrown, too. The estate plan that you spent time, effort, and money to get just right will not automatically evolve as your life changes. Even when you have a great estate plan in place you must remain vigilant. The current battle over Michael Crichton's estate illustrates this point precisely.

Crichton was the creator of movie hits like Jurassic Park and the television series ER. Understanding the importance of sound estate planning to preserve peace of mind for his family, Crichton apparently had a robust estate plan in place. And then life changed.

Michael Crichton had prepared carefully, incorporating a premarital agreement with his fifth (and surviving) wife to make sure that he fully provided for his child from a previous marriage. However, Crichton and his wife were expecting a new baby when Crichton died unexpectedly late last year. Though he had apparently gone to great lengths in earlier planning, the fact that he failed to provide for his unborn child has cast a cloud of uncertainty over Crichton's estate. It appears that despite his earlier efforts, Michael Crichton is bound to leave a legacy of distress, uncertainty, and litigation for his family.

Unlike Heath Ledger and Michael Crichton, you may be certain that you will not have children later in life. But do you know with certainty that your loved ones will not become a spendthrift, develop a creditor problem (50% of marriages end in divorce), or receive government benefits such that an outright inheritance would result in disqualification of those benefits?

Where Do YOU Stand?

Although none of us like to embrace our mortality, as responsible adults we have to prepare ourselves and our families for the inevitable. Whether you're a millionaire or of more modest means, you want to leave a lasting legacy of family harmony, good memories, and caring protection for those you love. Estate planning can be challenging, and should never be done alone. Take the time to discuss your needs with a team of well-trained, attentive estate planning professionals now.