Who can create a Will? Any person that is mentally competent, at least 18 years old and is not under any fraud, coercion, duress or undue influence.

Who should have a Will? Every adult should have a Will in order to direct how your estate is divided upon death. You should also name the person who you want to handle the administration of your estate, called an Executor. Having a Will can help reduce probate costs.

What is one of the most important things a Will does? It can nominate a Guardian for your minor children if something should happen to you.

How long is my Will valid? A Will is valid until you revoke it, destroy it, or sign a new Will.

Can I change my Will? Since your Will does not take effect until you die, it can be changed at any time during your life as long as you are mentally competent.

What happens if I don’t have a Will? Then the State of Ohio decides who receives your property regardless of what your wishes were.

Is a Trust a substitute for a Will? No. A Trust does not eliminate the need for a Will. If you have a Living Trust, you still must have a Will to pour over any of the assets that have not been or cannot be placed into the Trust. A Trust can also help avoid estate taxes.

Who should draft your Will? Only use a lawyer that is familiar with estate planning to avoid the risks. Many lawyers do not practice in the area of estate planning and this can create serious problems for your estate plan.

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Do you have pictures, e-mail, Facebook, Twitter, YouTube, or blog accounts and an Internet presence? What happens to online property when we pass away? These issues must be considered when doing estate planning.

Anything connected to your digital image can outlive you. How do you want your image managed? What if your surviving heirs decide to remove your blogs from the internet against your wishes? Would you want to place your electronic archives on someone else’s website or what happens to your current website? Online service providers may have different policies. Some online entities prohibit transferring accounts to others.

You may wish to have an offline backup of things you cherish, like photographs. You may even want to create an inventory of your online accounts and property. Share your passwords with someone you trust and tell them you put your passwords here and this is how you’ve stored them. Provide a simple list with the names and ways to access your electronic data and specifically what your wishes are to avoid estate problems.

Your estate planning documents should authorize someone to handle your digital “belongings”. When choosing a fiduciary consider whether the person you chose as Power of Attorney, Executor, or Trustee has technical understanding of how to manage digital property.

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The following legal options are relatively unknown but have been successfully used to help avoid contests in estate planning for same sex/non-traditional partners.

Under the Designation of Heir At Law statute, a person may appear before the Probate Judge and file a “written declaration” that, as his free and voluntary act, he designates another to stand in such relation as an heir at law in the event of death. This basically means a same-sex partner could ask the Court to declare the other same-sex partner as an “heir at law” and thus they would be treated as a child born in wedlock for purposes of inheritance.

The designation of heir at law action could also be used to safeguard in the event that a same-sex partner wrote a Will leaving their Estate to the other partner and that Will were successfully contested and thrown out. If this were the case, then the same-sex partner would inherit under the Statute of Descent and Distribution and thus stand in the place of a child.

Another legal option to try and foreclose a successful Will Contest is to petition the Probate Court to decide the validity of a Will, also known as a “Pre-Probate of Will” action. Under this law a person may ask the Court for a judgment while they are alive declaring the Will valid.

This procedure is essentially a request to the Court to find that the Will is valid during the life of the testator and in essence to help minimize the risk of a Will Contest or the chances for the success of the same.

Only use a lawyer familiar with estate planning to avoid risks. Because of the complexity of estate planning it is important to consult with an attorney who does estate planning on a regular basis.

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Most people (approximately 60 to 65% of Central Ohio people) do not have a Will. Why? Because most of us are busy living and working and the last thing we think about is our mortality.

Usually the Do-It-Yourself Wills are done by people who can afford to have a Will professionally done. The typical errors include improper witnessing, signatures, conflicting language, a failure to properly dispose of the assets, and of course estate tax avoidance language. Other errors could cause the loss of significant estate tax savings, and/or improper probate avoidance techniques, and not to mention an unequal distribution of their estate.

The loss in business to probate/estate planning lawyers is short term! In the long run there will be more business due to the litigation that will result! Lawyers will see a boom in estate litigation and in business!

Most people can wreak havoc by drafting their own estate planning documents. In the end (pun intended) the ones they loved and cared about will suffer the most from the chaos and legal problems they will leave with their family!

The cost to have a Will or Trust done professionally and correctly is a fraction of what the family will spend in estate legal fees cleaning up the mess!

Finally, if you use a lawyer, keep in mind not every lawyer knows the ins and outs of estate planning!

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The second thing to consider is who will be your executor? Always chose someone with good common sense and someone that you trust. It is also critical to chose an alternate or backup executor in the event that the original person you have nominated declines, resigns, or is simply unavailable to serve as executor.

Another vital and important consideration is who will be guardian over minor children. Failure to consider this issue could result in the Court’s determining custody. It is also important that an alternate guardian be nominated in case your first choice declines, resigns or is simply unavailable to serve as guardian.

Store your will in a safe place where it cannot be damaged, destroyed, stolen or lost. The following are places where you may store an original Will: asking your bank trust department, safe deposit box, some probate courts will store this, and of course, you may ask your attorney.

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Most people think after they die that everything will automatically pass to their loved ones. This may not necessarily be the case.

If a person dies without a Will, the State of Ohio and the Probate Court will decide who gets what and when, and how to distribute the assets. And there is no guarantee that your wishes will be fulfilled. This is only one reason why you must have a Will.

By having a Will, a person can ensure that their assets go to their intended beneficiaries. Having a Will can also expedite the Estate administration process.

A well drafted Will can also help minimize family fights about the Estate. It is helpful that a well written Will be as specific as possible to minimize disputes among loved ones about your property.

You should also consider who gets what in the event the primary beneficiary should pre-decease. Naming a contingent beneficiary is always a good idea. A well drafted Will should also contain a residual clause. This disposes of any remaining assets that are not previously distributed .

Finally, the most important and overlooked reason to have a Will is to determine who would be named as Guardian of a minor child. Without a Will, this issue is decided by the Courts. In order to avoid the Court’s deciding who gets guardianship over a minor child, you must name a Guardian and alternate in the event the primary Guardian refuses or is unable to serve.

Because of the complexity of estate planning it is important to consult with an attorney who does estate planning on a regular basis in order to address specific concerns that each individual has.

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Written by tsammons in Estate Planning, Living Trusts on IllinoisLawNews.Net

At home, I received a newsletter from a northwest suburban lawyer who prepares a lot of living trusts. This attorney does a lot of seminars and I must be in his direct mail target market now that I am old enough to be in the AARP army. I scanned the newsletter expecting the usual boilerplate, but one story left me amazed.

It was about how the attorney was experiencing a rash of probate estates that had to be opened for clients with living trusts. (Spoiler alert: You’re not supposed to have a probate with a living trust.)

The story pointed out that the clients simply were not “funding” their trusts correctly, which is the process of changing beneficiaries and the titles of accounts to the living trust. A trust has to be properly funded to avoid probate. If any asset valued at more than $100,000.00 is left in the client’s own name (not jointly or in the trust) a probate will be necessary. Avoiding probate is one of the reasons to use a living trust over a will, so the newsletter story pointed out that this was huge failure. Rather than blaming himself for this, the attorney laid responsibility for this problem squarely where it belonged —on all of his misguided, wayward clients.

After all, he gave the client a letter telling them exactly how to fund their living trust. Why couldn’t the client simply follow his instructions? This attorney is part of the “go in peace my son and fund the trust yourself” school of attorneys. Oddly, when attorneys refuse to participate in funding of trusts, the cost of the trust is usually pretty high. But many attorneys consider trust funding to be beneath them.

I believe that attorneys who draft living trusts have an obligation to help the client fund the trust. I have drafted thousands of living trusts for clients and my clients are intelligent people. They are also very busy and have a million demands and obligations. They do not have the time or the interest to learn how to fund their living trust. Nor should they have to.

I have tried every imaginable combination of methods for funding trusts and after 20 plus years, I’m convinced that, for me, there is only one way to handle trust funding that works. Both the attorney and client have to be involved:

1. It is too much to sign the trust and other documents AND fund the trust in one meeting, unless the trust funding is really simple. I usually sign the trust in one meeting and fund the trust in a second meeting.

2. At the trust signing I set up an appointment for two weeks down the line with the client for a trust funding meeting. If I don’t schedule an appointment at the trust signing, there is about a 60% chance the client will never get back to me and the trust will be left unfunded.

3. At the trust signing, I make a list of the forms that the client must obtain. The client calls for the forms and the forms are mailed or faxed to the client. Many institutions will not send the forms to me, so the client has to undertake this step. I have many of the common forms on file for Fidelity, Vanguard, Schwab and some of the more common companies.

4. From trial and error I have developed one unwavering rule: All beneficiaries must be changed on life insurance and IRA accounts. Many clients say “Oh don’t worry I know my spouse is primary and kids are secondary.” I always change the beneficiary designation for all IRAs and life insurance, even if the trust is not the beneficiary and no matter what the client says. I would estimate that about 75% of the current beneficiary designations are screwed up, missing or wrong.

5. Once all of the forms are obtained by the client, we have the trust funding meeting with the client in my office. I tell the client it will be the most boring 30 minutes of his or her life. I sort through the forms and fill them out for the client. The client signs them. I scan the forms into pdfs and we mail in the originals.

6. The trust funding meeting is essential. Sometimes the client will say “I’ll just drop off the forms and you can fill them in when you have time.” This does not work. First, the client will usually forget to drop off the forms. Second, I will never have the time to complete them. The trust funding meeting forces the client and me to finish the job.

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Tommy Taneff discusses why you need a Power of Attorney and different types of Powers of Attorney.

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Living trusts are often advertised as a solution to avoid probate, which involves a court overseeing the allocation of an estate and related financial and time costs. When such a trust is created, property is not part of a decedent’s estate but instead, it is part of the trust itself. However, sometimes living trusts may not save time and money in the end, as they can cost up to thousands of dollars, often more than probate costs, to set up. In addition, many simple estates distributed by wills never enter probate, unless there are problems raised by heirs or creditors.

One important consideration involved with making the choice between a living trust and a will is whether or not an estate would be likely to enter probate. If so, next consider whether the associated probate costs are likely to exceed those of setting up a living trust and whether or not other ways to avoid probate exist. It is important to realize that upon setting up a living trust it must be funded and assets must be transferred before one’s death. In addition, the creation of a living trust will not protect assets from creditors.

Before creating a living trust, it is important to consider whether one will effectively work in your situation. If it seems to be a good match, a probate or an estate-planning attorney can assist in creating a living trust. Those interested in creating a living trust should beware of those who call themselves trust specialists or certified planners, whose real goals often are simply to sell unneeded annuities and encourage the spending of savings.

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Written By Greg Herman-Giddens on North Carolina Estate Planning Blog and Published by TrustCounsel

It’s 2010!  For the past nine years, the federal estate tax rules have been changing and they shifted again on January 1, 2010. As of that date, the federal estate tax has been repealed, although it is scheduled to return in 2011 with a $1 million exemption and 55% rate. For this year, there is complicated alternate tax regime that allows executors to apply up to $1.3 million in basis to (with an additional $3 million for a surviving spouse) to assets of a decedent to avoid capital gains tax upon sale of the assets. Because of the the changes and uncertainty about possible retroactive imposition of the estate tax for this year, virtually everyone with assets in excess of $1 million should have their estate plan reviewed.Bypass Trust Arrangements May Need Tweaking

One example of the need for an updated estate plan occurs when a married couple has set up a bypass trust arrangement in their wills or living trust documents. (Bypass trusts are also commonly called credit shelter trusts).

The main purpose of a bypass trust is to allow both spouses to take advantage of their respective federal estate tax exemptions. Typically, assets with value equal to the current exemption amount are automatically put into the bypass trust when the first spouse dies. The trust is created at that time and is irrevocable.

The beneficiaries of the trust are designated by the first spouse to die, and the assets used to fund the trust come out of that person’s estate when death occurs. Typically, the trust beneficiaries are that person’s children and/or grandchildren.

Since the first spouse to die designates the beneficiaries of the bypass trust, the assets used to fund the trust are included in that person’s estate for federal estate tax purposes. However, no federal estate tax is due because that person’s estate tax exemption provides sufficient shelter.

The surviving spouse can be given money from the bypass trust to meet his or her reasonable financial needs. When the surviving spouse passes away, the remaining assets in the bypass trust go the beneficiaries of the trust (such as the children and/or grandchildren).The Potential Problem

Most wills and trusts don’t state a specific value for the assets that will be used fund the bypass trust. Instead, the language effectively states that assets with value equal to the current federal estate tax exemption amount will be placed in the trust. But with no estate tax in effect, this arrangement will not work. Also, such provisions do not have the flexibility to take into account income tax issues as well. Alternate provisions are necessary to take advantage of current laws in the event the estate tax is not reinstated retroactively, and the possibility of a future estate tax exemption of anywhere from $1 million to $5 million.The Bottom Line

Throughout your life, your estate plan will have to be altered at times due to tax changes and other events. Some situations are inherently unpredictable–like winning the lottery or losing a bundle in the stock market. However, it’s a fact that the federal estate tax laws are in flux and proper planning is needed. Therefore, don’t delay contacting consult your estate planning attorney about whether you need to take action.

As of January 1st, the federal estate tax is no more and it may mean that you should revise your estate plan and related documents. Anyone with total assets over $1 million (including face value of life insurance, retirement, home equity, etc.) should make make sure there estate plan is up to date. Click “Continue Reading” to find out what the change involves, what happens next year, and what steps you might want to take now to ensure your wishes are carried out.

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Written By Attorney Tim Bishop on Articles Free UK

However much you might like to try and ignore it, death, like taxation, is unavoidable. With a valid and up-to-date will, however, you can make sure that your assets are distributed according to your wishes, and that you have made proper provision for your loved ones.

Before making a will, however, you will need to consider the following:

1. Your property – make a list of everything you own and how much it is worth. Include your home and any buy-to-let or holiday property you may have, money in bank or building society accounts, shares, pensions, insurance policies, any personal valuables and any business interests you own.

2. Providing for your loved ones – who do you want to leave your property to? Make sure that you make proper provision for your spouse or partner, children, extended or previous family members and friends. Do you want to leave some money to a particular charity? Do you want to put any conditions on any of your legacies? A common condition is that children must reach a particular age, say 21, before being entitled to the money that you leave them.

3. Guardians – do you have any minor children? If so, who would you want to care for them if you were to die before they reach the age of 18?

4. Your business interests – what would you like to happen to any business interests you may own after you die?

5. Any other wishes? Do you have any particular wishes for the arrangement of your funeral? In particular, would you prefer to be buried or cremated – or is there something else you would prefer? How do you feel about organ donation?

6. Appointing Executors – executors are people you appoint to administer your estate i.e. carry out your wishes under the will when you die. This could be a family member or close friend, or an experienced professional such as a solicitor. A common and often sensible combination is to appoint both a family member and a solicitor. Make sure that you appoint someone who understands financial issues and don’t forget to make sure that they are prepared to take on the role of executorships should you die. This is important as without checking with them first, you run the risk of them refusing to act as executors and leaving the estate without someone you have chosen to administer it. Remember that the responsibilities of the will can be quite long lasting – especially if your will involves the creation of a trust, for example with regard to your children.

7. Finally don’t forget to make sure you are aware of the tax implications, particularly with regard to inheritance tax, of your will.

It is good advice to review your will at least every 5 years and especially on any major life changes such as marriage, divorce, or having a child. Although it is possible these days to prepare your own will, there are serious risks involved and sadly the number of incorrectly drafted wills being contested is rising rapidly – at vast financial and emotional cost to the estate of the deceased. You should think about getting some professional advice from an experienced wills and probate solicitor – they should be able to draw up a simple will for you for a reasonable fixed cost.

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Written and posted on Playa Vista Listings

After months of dealing with the complex process of buying a new home – from selecting an agent, to viewing properties, to securing a loan, to negotiating a purchase price –homebuyers often think that once the ink is dry on the escrow papers, the deal is done. However, taking the extra step to determine how best to hold title to your home can potentially save thousands of dollars in fees and taxes, and prevent costly title defects that can hinder your ability to sell the property. Holding title to your home in a living trust – as opposed to “community property”- is the single best way to avoid these complications. The living trust is a self-settled revocable trust (you created it) that, when someone dies, causes their estate to avoid the public probate process. Like a will, a trust specifies who is to inherit your home and other assets when you die. Holding title to your home and your other assets in a trust ensures that your instructions on how to distribute them will be carried out after you die. Additionally, if a husband and wife hold title to a home as community property, instead of in their names as trustees of their living trust, and one of them dies, the surviving spouse is prevented from selling the residence as quickly as it would be if it were in a living trust. One of the other reasons for utilizing a living trust is to avoid the exorbitant statutory fees associated with the probate process. For example, on an estate of $1 million, fees will run about $46,000 ($23,000 payable to the attorney and $23,000 payable to the Executor), whereas the costs of administration of a living trust is generally much, much less. In addition to real estate, assets including liquid cash accounts, savings accounts, stock brokerage accounts and personal effects like jewelry, furniture and other personal items can also be transferred to the living trust. The consequences of your home being in the name of an individual or as “community property” between spouses or registered domestic partners, upon the death of you or your loved one, is a formal court proceeding known as probate (proving of the Will). If you had a living trust upon your death and your successor trustee can prove that you intended for your home to be in it, a quicker and easier judicial process known as the “Heggstad petition” may result in a court order transferring the assets to the successor trustees of your living trust. The probate process is generally a nine-month minimum period whereas the “Heggstad petition” process can usually obtain the needed court order in about six to eight weeks. Both the probate process and the “Heggstad petition” court order transfer the assets to the successor trustee of the living trust. When an attorney assists with the creation of the living trust, he generally prepares and assists with the recording of deeds with the appropriate county(ies) transferring title to the trustees of the trust. Often times though, certain assets do get transferred to the living trust, but somehow are transferred back into the individual name of the settlor(s) of the trust. This happens most often with the family residence as a result of a refinance. Some lending institutions want the borrower’s name on the deed before they will lend and as a result, ask that the property be deeded back to the settlor of the living trust before the loan can be completed. This is just fine, however, one should never allow for their real estate to be transferred out of the living trust without clear instructions that it is to be transferred back into the name of the living trust immediately after securing the loan.

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Most internet companies have strict privacy policies. Therefore, when one becomes disabled or passes away, it can create a problem regarding access to online accounts and/or to whom the account belongs to. The issue that arises is whether or not digital assets can be passed on to heirs.

You can also consider giving your heirs or someone you trust access to information that may be stored online, such as photographs, videos, music, letters, etc. These items may not be of any significant monetary value but may be priceless to loved ones.

As our computer literate population ages, post-mortem lawsuits are likely to become common and anyone who owns a computer could end up forcing their family to unnecessarily deal with these issues.

As more businesses move away from paper, it might become more difficult to locate and access online information if someone dies without telling their heirs or others of their existence or location or how to access this information. Privacy laws might further complicate internet access when companies may refuse to release user name and password information.

Therefore it is critical that good estate planning take into consideration the protection of digital assets and access to the same.

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