Why Is Estate Planning So Important? – Annapolis and Towson Estate Planning Attorneys

Big Easy Magazine’s recent article “Estate Planning Is Essential and Here’s Why” says that writing a Last Will and Testament is not limited to what happens to your house, car, company, or other assets after you die. It also states who will take care of your minor children, if they are orphaned.

Your instructions for burial and other smaller things can be included.

If you fail to provide specific instructions, the state intestacy laws will apply upon your death. Here is a glimpse of the consequences of not writing your last will:

  • Your burial preferences may not be honored.
  • Your properties may be managed by an individual you do not necessarily trust. Without a named executor to your Will, some other family member may be asked to file taxes, make transfers and manage your estate.
  • Family members may not get an inheritance. Under intestacy laws, same-sex relationships and common-law marriages may not be recognized. So, your partner may not get a portion of your estate.
  • Your favorite charity may be left out. If you are committed to leaving a legacy, your charity, religious organization, or other organization of choice should be mentioned in the Will.
  • The government will name the guardians for your minor children.

With a Will, you can designate a guardian for your children and avoid additional taxes. Ask an experienced estate planning attorney about developing a comprehensive estate plan.

Aside from this, estate planning can also save your loved ones considerable angst and money.

A detailed Will with your instructions will avoid complications and provide comfort, while your loved ones recover emotionally from their loss.

Reference: Big Easy Magazine (May 17, 2021) “Estate Planning Is Essential and Here’s Why”

 

Sims & Campbell, LLC – Annapolis and Towson Estate Planning Attorneys

How Can I Be a Super Executor? – Annapolis and Towson Estate Planning

Executors are frequently relatives or friends designated in a Last Will and Testament as the final administrator of a deceased person’s estate. If you agreed to serve as an executor, you likely are aware of some of the tasks you will face, closing accounts, inventorying assets and distributing bequests. Even when it is a relatively simple situation — one spouse dies and leaves everything to the other — there can be a lot of paperwork involved. It certainly can get more complicated when a widow dies, and there are several children and numerous assets.

AARP’s recent article entitled “How to Be a Good Executor of a Will or Estate” says being an executor is a tough job. So, heed these steps to make certain that when the time comes for you to serve, you honor the decedent, serve his or her heirs and do your job as efficiently as possible.

Communicate. Be sure that you understand the Will writer’s wishes. You can request that he or she be specific about what he or she truly wants to happen with the estate after his or her death. The Will writer can give an explanation in a last letter of instruction. It is an informal document to be read after he dies that explains his or her decisions.

Do the paperwork. When the person passes away, you must find the Will (the original, not a copy). The Will and the death certificate must be filed with the probate court to get letters testamentary. This authorizes the executor to take any actions required to administer the estate. Get at least a dozen extra certified copies of the death certificate because you will need these to cancel credit cards, sell a home, transfer title to a car and turn off the utilities.

Safeguard property. A vacant house may attract thieves who scan the obituaries, as well as relatives and neighbors who think they are entitled to help themselves. After the death, lock up and secure the property. Move jewelry and other valuables to a safe place. Also, take pictures of the home’s interior to document its contents.

Get organized. The executor must maintain and sell an unoccupied house, stop Social Security payments, pay debts, close financial accounts and file taxes. Start a detailed to-do list, keep good records and create a list of assets and liabilities.

Get a thick skin. Closing out an estate entails managing the emotions of heirs. They also may be your siblings who are resentful of the authority you have been given. If so, give them regular updates to smooth bad feelings that may arise. Total transparency is best.

Distribute personal items. This can be a difficult process, so put a system in place to fairly divide the possessions. Even the most ordinary item may have deep sentimental value to an heir and could cause stress for the executor without your guidance.

Educate the heirs. Heirs and beneficiaries cannot be paid, until all taxes and debts of the estate are settled. Let them know that it may take many months before they will receive payment.

Final steps. Lastly, the executor must pay any debts and taxes owed by the estate, distribute the estate property and give an accounting for the estate to the beneficiaries.

If you have questions, ask an experienced estate planning attorney.

Reference: AARP (May 7, 2021) “How to Be a Good Executor of a Will or Estate”

 

Sims & Campbell, LLC – Annapolis and Towson Estate Planning Attorneys

Do You Have to Do Probate when Someone Dies? – Annapolis and Towson Estate Planning

Probate is a Latin term meaning “to prove.” Legally, a deceased person may not own property, so the moment a person dies, the property they owned while living is in a legal state of limbo. The rightful owners must prove their ownership in court, explains the article “Wills and Probate” from Southlake Style. Probate refers to the legal process that recognizes a person’s death, proves whether or not a valid last will exists and who is entitled to assets the decedent owned while they were living.

The probate court oversees the payment of the decedent’s debts, as well as the distribution of their assets. The court’s role is to facilitate this process and protect the interests of all creditors and beneficiaries of the estate. The process is known as “probate administration.”

Having a last will does not automatically transfer property. The last will must be properly probated first. If there is a last will, the estate is described as “testate.” The last will must contain certain language and have been properly executed by the testator (the decedent) and the witnesses. Every state has its own estate laws. Therefore, to be valid, the last will must follow the rules of the person’s state. A last will that is valid in one state may be invalid in another.

The court must give its approval that the last will is valid and confirm the executor is suited to perform their duties. Texas is one of a few states that allow for independent administration, where the court appoints an administrator who submits an inventory of assets and liabilities. The administration goes on with no need for probate judge’s approval, as long as the last will contains the specific language to qualify.

If there was no last will, the estate is considered to be “intestate” and the laws of the state determine who inherits what assets. The laws rely on the relationship between the decedent and the genetic or bloodline family members. An estranged relative could end up with everything. The estate distribution is more likely to be challenged if there is no last will, causing additional family grief, stress and expenses.

The last will should name an executor or administrator to carry out the terms of the last will. The executor can be a family member or a trusted friend, as long as they are known to be honest and able to manage financial and legal transactions. Administering an estate takes time, depending upon the complexity of the estate and how the person managed the business side of their lives. The executor pays bills, may need to sell a home and also deals with any creditors.

The smart estate plan includes assets that are not transferrable by the last will. These are known as “non-probate” assets and go directly to the heirs, if the beneficiary designation is properly done. They can include life insurance proceeds, pensions, 401(k)s, bank accounts and any asset with a beneficiary designation. If all of the assets in an estate are non-probate assets, assets of the estate are easily and usually quickly distributed. Many people accomplish this through the use of a Living Trust.

Every person’s life is different, and so is their estate plan. Family dynamics, the amount of assets owned and how they are owned will impact how the estate is distributed. Start by meeting with an experienced estate planning attorney to prepare for the future.

Reference: Southlake Style (May 17, 2021) “Wills and Probate”

 

Sims & Campbell, LLC – Annapolis and Towson Estate Planning Attorneys

What is not Covered by a Will? – Annapolis and Towson Estate Planning

A Last Will and Testament is one part of a holistic estate plan used to direct the distribution of property after a person has died.  A recent article titled “What you can’t do with a will” from Ponte Vedra Recorder explains how Wills work, and the types of property not distributed through a Will.

Wills are used to inform the probate court regarding your choice of Guardians for any minor children and the Executor of your estate. Without a Will, both of those decisions will be made by the court.  It is better to make those decisions yourself and to make them legally binding with a will.

Lacking a Will, an estate will be distributed according to the laws of the state, which creates extra expenses and sometimes, leads to life-long fights between family members.

Property distributed through a Will necessarily must be processed through a probate, a formal process involving a court.  However, some assets do not pass through probate.  Here is how non-probate assets are distributed:

Jointly Held Property. When one of the “joint tenants” dies, their interest in the property ends and the other joint tenant owns the entire property.

Property in Trust. Assets owned by a trust pass to the beneficiaries under the terms of the trust, with the guidance of the Trustee.

Life Insurance. Proceeds from life insurance policies are distributed directly to the named beneficiaries.  Whatever a Will says about life insurance proceeds does not matter—the beneficiary designation is what controls this distribution, unless there is no beneficiary designated.

Retirement Accounts. IRAs, 401(k) and similar assets pass to named beneficiaries.  In most cases, under federal law, the surviving spouse is the automatic beneficiary of a 401(k), although there are always exceptions.  The owner of an IRA may name a preferred beneficiary.

Transfer on Death (TOD) Accounts. Some investment accounts have the ability to name a designated beneficiary who receives the assets upon the death of the original owner.  They transfer outside of probate.

Here are some things that should NOT be included in your Will:

Funeral instructions might not be read until days or even weeks after death. Create a separate letter of instructions and make sure family members know where it is.

Provisions for a special needs family member need to be made separately from a Will.  A special needs trust is used to ensure that the family member can inherit assets but does not become ineligible for government benefits.  Talk to an elder law estate planning attorney about how this is best handled.

Conditions on gifts should not be addressed in a will. Certain conditions are not permitted by law.  If you want to control how and when assets are distributed, you want to create a trust. The trust can set conditions, like reaching a certain age or being fully employed, etc., for a Trustee to release funds.

Reference: Ponte Vedra Recorder (April 15, 2021) “What you can’t do with a will”

 

Sims & Campbell, LLC – Annapolis and Towson Estate Planning Attorneys

Should I Discuss Estate Planning with My Children? – Annapolis and Towson Estate Planning

US News & World Report’s recent article entitled “Discuss Your Estate Plan With Your Children” says that staying up-to-date with your estate plan and sharing your plans with your children could make a big impact on your legacy and what you will pay in estate taxes. Let us look at why you should consider talking to your children about estate planning.

People frequently create an estate plan and name their child as the trustee or executor. However, they fail to discuss the role and what is involved with them. Ask your kids if they are comfortable acting as the executor, trustee, or power of attorney. Review what each of the roles involves and explain the responsibilities. The estate documents state some critical responsibilities but do not provide all the details. Having your children involved in the process and getting their buy-in will be a big benefit in the future.

Share information about valuables stored in a fireproof safe or add their name to the safety deposit box. Tell them about your accounts at financial institutions and the titling of the various accounts, so that these accounts are not forgotten, and bills get paid when you are not around.

Parents can get children involved with a meeting with their estate planning attorney to review the estate plan and pertinent duties of each child. If they have questions, an experienced estate planning attorney can answer them in the context of the overall estate plan.

If children are minors, invite the successor trustee to also be part of the meeting.

Explain what you own, what type of accounts you have and how they are treated from a tax perspective.

Discussing your estate plan with your children provides a valuable opportunity to connect with your loved ones, even after you are gone. An individual’s attitudes about money says much about his or her values.

Sharing with your children what your money means to you, and why you are speaking with them about it, will help guide them in honoring your memory.

There are many personal reasons to discuss your estate plans with your children. While it is a simple step, it is not easy to have this conversation. However, the pandemic emphasized the need to not procrastinate when it comes to estate planning. It has also provided an opportunity to discuss these estate plans with your children.

Reference: US News & World Report (Feb. 17, 2021) “Discuss Your Estate Plan With Your Children”

 

Sims & Campbell, LLC – Annapolis and Towson Estate Planning Attorneys

What Is a Living Trust Estate Plan? – Annapolis and Towson Estate Planning

Living trusts are one of the most popular estate planning tools. However, a living trust accomplishes several goals, explains the article “Living trusts allow estates to avoid probate” from The Record Courier. A living trust allows for the management of a beneficiary’s inheritance and may also reduce estate taxes.  A person with many heirs or who owns real estate should consider including a living trust in their estate plan.

A trust is a fiduciary relationship, where the person who creates the trust, known as the “grantor,” “settlor,” “trustor” or “trustmaker,” gives the “trustee” the right to hold title to assets to benefit another person. This third person is usually an heir, a beneficiary, or a charity.

With a living trust, the grantor, trustee and beneficiary may be one and the same person. A living trust may be created by one person for that person’s benefit. When the grantor dies, or becomes incapacitated, another person designated by the trust becomes the successor trustee and manages the trust for the benefit of the beneficiary or heir. All of these roles are defined in the trust documents.

The living trust, which is sometimes referred to as an “inter vivos” trust, is created to benefit the grantor while they are living. A grantor can make any and all changes they wish while they are living to their trust (within the law, of course). A testamentary trust is created through a person’s will, and assets are transferred to the trust only when the grantor dies. A testamentary trust is an “irrevocable” trust, and no changes can be made to an irrevocable trust.

There are numerous other trusts used to manage the distribution of wealth and protect assets from taxes. Any trust agreement must identify the name of the trust, the initial trustee and the beneficiaries, as well as the terms of the trust and the name of a successor trustee.

For the trust to achieve its desired outcome, assets must be transferred from the individual to the trust. This is called “funding the trust.” The trust creator typically holds title to assets, but to fund the trust, titled property, like bank and investment accounts, real property or vehicles, are transferred to the trust by changing the name on the title. Personal property that does not have a title is transferred by an assignment of all tangible property to the trustee. An estate planning attorney will be able to help with this process, which can be cumbersome but is completely necessary for the trust to work.

Some assets, like life insurance or retirement accounts, do not need to be transferred to the trust. They use a beneficiary designation, naming a person who will become the owner upon the death of the original owner. These assets do not belong in a trust, unless there are special circumstances.

Reference: The Record Courier (April 3, 2021) “Living trusts allow estates to avoid probate”

 

Sims & Campbell, LLC – Annapolis and Towson Estate Planning Attorneys

What Does ‘Per Stirpes’ in a Will Mean? – Annapolis and Towson Estate Planning

Let us say you had six brothers and sisters. All of your siblings were still living at the time your father made his will. However, three of your brothers died before your father passed away.

In that case, would the children of the deceased siblings be entitled to their fathers’ shares of their grandfather’s estate?

What if that was not what the father intended when he wrote the will. Instead, the money was to be divided equally between his remaining living children. Who is right?

Nj.com’s recent article entitled “My father died. Who will get the share meant for a dead beneficiary?” says that it really depends on how the will was written by the deceased, who is also known as the testator.

A will may state, “I give, devise, and bequeath my residuary estate to those of my children who survive me, in equal shares, and the descendants of a deceased child of mine, to take their parent’s share per stirpes.”

Per stirpes in a will means that the share of a deceased child will pass to the children of that deceased child in equal shares, if any. However, if nothing is stated in the will, then every state has law that interprets a lapse of a will provision. These are known as “anti-lapse” statutes.

For example, the Kansas anti-lapse statute (K.S.A. 59-615), is operative only when:

  • The testator bequeaths or devises property to a beneficiary who is a member of the class designated by the statute;
  • The specified beneficiary predeceases the testator and leaves issue who survive the testator; and
  • The testator does not revoke or change his or her will as to the predeceased beneficiary.

If you are a resident of Arizona, that state’s anti-lapse statute applies, if a beneficiary under your will predeceases you. The anti-lapse statute would apply if the predeceasing beneficiary were your grandparent, a descendant of your grandparent, or your stepchild, who have at least one child who survives you. Therefore, if the anti-lapse statute were to apply, the child who survives you would effectively take your beneficiary’s place, and inherit the gift instead of the beneficiary.

Talk to an experienced estate planning attorney if you have questions about wills and per stirpes designations.

Reference: nj.com (March 25, 2021) “My father died. Who will get the share meant for a dead beneficiary?”

 

Sims & Campbell, LLC – Annapolis and Towson Estate Planning Attorneys

Does Your State Have an Estate or Inheritance Tax? – Annapolis and Towson Estate Planning

Did you know that Hawaii and the State of Washington have the highest estate tax rates in the nation at 20%? There are 8 states and DC that are next with a top rate of 16%. Massachusetts and Oregon have the lowest exemption levels at $1 million, and Connecticut has the highest exemption level at $7.1 million.

The Tax Foundation’s recent article entitled “Does Your State Have an Estate or Inheritance Tax?” says that of the six states with inheritance taxes, Nebraska has the highest top rate at 18%, and Maryland has the lowest top rate at 10%. All six of these states exempt spouses, and some fully or partially exempt immediate relatives.

Estate taxes are paid by the decedent’s estate, prior to asset distribution to the heirs. The tax is imposed on the overall value of the estate. Inheritance taxes are due from the recipient of a bequest and are based on the amount distributed to each beneficiary.

Most states have been steering away from estate or inheritance taxes or have upped their exemption levels because estate taxes without the federal exemption hurt a state’s competitiveness. Delaware repealed its estate tax at the start of 2018, and New Jersey finished its phase out of its estate tax at the same time. The Garden State now only imposes an inheritance tax.

Connecticut still is phasing in an increase to its estate exemption. They plan to mirror the federal exemption by 2023. However, as the exemption increases, the minimum tax rate also increases. In 2020, rates started at 10%, while the lowest rate in 2021 is 10.8%. Connecticut’s estate tax will have a flat rate of 12% by 2023.

In Vermont, they’re still phasing in an estate exemption increase. They are upping the exemption to $5 million on January 1, compared to $4.5 million in 2020.

DC has gone in the opposite direction. The District has dropped its estate tax exemption from $5.8 million to $4 million in 2021, but at the same time decreased its bottom rate from 12% to 11.2%.

Remember that the Tax Cuts and Jobs Act of 2017 raised the estate tax exclusion from $5.49 million to $11.2 million per person. This expires December 31, 2025, unless reduced sooner!

Talk to an experienced estate planning attorney about estate and inheritance taxes, and see if you need to know about either, in your state.

Reference: The Tax Foundation (Feb. 24, 2021) “Does Your State Have an Estate or Inheritance Tax?”

 

Sims & Campbell, LLC – Annapolis and Towson Estate Planning Attorneys

What are the Stages of Probate? – Annapolis and Towson Estate Planning

Probate is a court-supervised process occurring after your death. It takes place in the state where you were a resident at the time of your death and addresses your estate—all of your financial assets, real estate, personal belongings, debts and unpaid taxes. If you have an estate plan, your last will names an executor, the person who takes charge of your estate and settles your affairs, explains the article “Understanding Probate” from Pike County Courier. How exactly does the probate process work?

If your estate is subject to probate, your estate planning attorney files an application for the probate of your last will with the local court. The application, known as a petition, is brought to the probate court, along with the last will. That is also usually when the petitioner files an application for the appointment of the executor of your estate.

First, the court must rule on the validity of the last will. Does it meet all of the state’s requirements? Was it witnessed properly? If the last will meets the state’s requirements, then the court deems it valid and addresses the application for the executor. That person must also meet the legal requirements of your state. If the court agrees that the person is fit to serve, it approves the application.

The executor plays a very important role in settling your estate. The executor is usually a spouse or a close family member. However, there are situations when naming an attorney or a bank is a better option. The person needs to be completely trustworthy. Your fiduciary will have a legal responsibility to be honest, impartial and put your estate’s well-being above the fiduciary’s own. If they do not have a good grasp of financial matters, the fiduciary must have the common sense to ask for expert help when needed.

Here are some of the tasks the fiduciary must address:

  • Finding and gathering assets and liabilities
  • Inventorying and appraising assets
  • Filing the estate tax return and your last tax return
  • Paying debts, managing creditors and paying taxes
  • Distributing assets
  • Providing a detailed report of the estate settlement to the court and any other parties

What is the probate court’s role in this part of the process? It depends upon the state. The probate court is more involved in some states than in others. If the state allows for a less formal process, it is simpler and faster. If the estate is complicated with multiple properties, significant assets and multiple heirs, probate can take years.

If there is no executor named in your last will, the court will appoint an administrator. If you do not have a last will, the court will also appoint an administrator to settle your estate following the laws of the state. This is the worst possible scenario, since your assets may be distributed in ways you never wished.

Does all of your estate go through the probate process? With proper estate planning, many assets can be taken out of your probate estate, allowing them to be distributed faster and easier. How assets are titled determines whether they go through probate. Any assets with named beneficiaries pass directly to those beneficiaries and are outside of the estate. That includes life insurance policies and retirement plans with named beneficiaries. It also includes assets titled “jointly with rights of survivorship,” which is how most people own their homes.

Your estate planning attorney will discuss how the probate process works in your state and how to prepare a last will and any needed trusts to distribute your assets as efficiently as possible.

Reference: Pike County Courier (March 4, 2021) “Understanding Probate”

 

Sims & Campbell, LLC – Annapolis and Towson Estate Planning Attorneys

How Do I Disinherit My Child? – Annapolis and Towson Estate Planning

Disinheriting a child or any person trying to gain access to your assets after you have died requires skilled estate planning. The things that can be done before you die to protect your estate are the subjects of a recent article “Disinheriting a child” from Westfair Online. It should be noted that if you anticipate a challenge to your will, or if you suspect claims will emerge after you pass, it will be wise to prepare your estate and family members for the legal, financial and emotional aspects of an estate battle.

Here are some of the steps to consider.

Avoiding probate. The probate estate includes assets that are controlled by your Last Will and Testament on the day you die. It does not include assets where there are named beneficiaries. Such assets pass directly to beneficiaries.

Before a will can be executed, it must go through probate. Part of the probate process is the notification of any individuals who may be entitled to receive assets. If you pass away without a will, the estate still needs to be probated and those individuals must still be provided with a notice of your passing and the distribution of your assets. If you had intended to disinherit someone and did not take the necessary steps, it is as if you have issued an invitation to them.

Using a revocable trust. Trusts are used to remove assets from probate estates. A revocable trust is a trust that allows you to maintain complete control over the assets in the trust, while you are living. When you die, the trust does not go through probate and no one needs to be notified of the trust’s existence or its terms, if you so specify and state law permits. Your wishes and assets may remain private. This is especially useful, if you want to disinherit someone.

The revocable trust is not immune from contest, but it makes the challenging more difficult.

Changing titles to joint ownership and naming beneficiaries. Changing your bank, investment and real estate property ownership to joint ownership is a way to avoid probate and have assets pass directly to your intended beneficiaries. However, there are complications to this strategy. If the person you add to an account has money problems, your assets are now available to their creditors. If the person on the account goes through a divorce, your assets are legally available to their spouse. And if the joint owner should die before you, any protection you may have obtained is gone. A trust may be a better solution.

Review your retirement plans and any other assets that allow you to name a beneficiary to ensure that the person who will receive these assets is still the person you want.

What about a no-contest clause? It seems like a simple solution—by including a no-contest clause, often referred to as an “in terrorem” clause, anyone who seeks to contest the will immediately forfeits any distribution to that person, if they are not successful in the will contest. However, what if they are successful in the will contest?

Talk with an experienced estate planning attorney about these and other strategies to defuse a disinherited person’s potential claims. Disinheriting a child sparks many estate battles, so preparations need to be made to protect the family and the estate.

Reference: Westfair Online (Jan. 26, 2021) “Disinheriting a child”

 

Sims & Campbell, LLC – Annapolis and Towson Estate Planning Attorneys