Tag: Estate Planning Attorney

Estate Planning

Avoiding Probate Litigation

SchulzeLawGroup

Disputes over guardianships, conservatorships, wills, trusts, and family real estate may be part of probate litigation. The most successful approach to mitigating or avoiding probate litigation risk is carefully planning for the future. Comprehensive estate plans that are routinely updated, careful consideration and documentation of gifts, and protective measures in the event of incapacity contribute to a challenge-free transfer of your estate assets to heirs.

Avoiding Probate with Trusts

A great way to avoid probate litigation is with a revocable living trust that permits you to title assets into the trust and manage it until your death. Years of managing your assets within this trust type prove that you handle your finances and property exactly as you intended if a contest is brought before a probate judge. Your competent management greatly reduces the risk of litigation as it demonstrates your mental capacity and financial management capability.

Common Causes for Contesting a Will in Probate

Gift-giving and real estate transfers to your children during your lifetime may open the doors for litigation after you are gone, particularly if these transfers have complex provisions and varying percentages. Consequences for unequal transfer of property or gifts often lead to children feeling the circumstances are unfair. Your adult children may not interpret your underlying future intent. For example, dividing ownership of the family cabin, giving one child eighty percent and the other twenty.

The same holds for personal gifts like jewelry, baseball cards, or art collections. A parent may promise inheritance of a gift, but you may be inviting future probate litigation without detailing it in a document with your signature. Gift promises and real estate transfers often lead to disputes between siblings, leading to probate litigation.

Ensuring Your Wishes are Followed When You’ve Been Incapacitated

Incapacity can be a challenging topic for a family to work through. Anyone at any age can become incapacitated by a sudden illness or accident. The thought of relinquishing financial and health care decisions to adult children or other family members can be unsettling. But implementing financial and medical powers of attorney can help avoid future litigation between family members. Nominate a guardian and financial and medical conservators while you have sound decision-making capacity and autonomy. They will be designated in your will and durable powers of attorney documents.

You can still make your own healthcare decisions even with a health care proxy or medical power of attorney. These individuals can only make decisions on your behalf once a doctor deems you physically or mentally incapacitated. In contrast, a durable financial power of attorney will retain decision-making powers over finances upon signing the document. An estate planning attorney helps you identify the criteria to consider for your specific needs when making decisions for this crucial role. Select both of these representatives well in advance of the unforeseen events that will require their help.

Planning Ahead

Establish your will and trusts early on as they are vehicles to control and communicate your personal and real property distribution to heirs. Your will protects your family from intestate statutes or laws that govern dying without a will. Your will nominates a personal representative to oversee your estate, the payment of outstanding debts, final taxes, guardianship, and the dispersal of remaining assets.

Know that most states will not consider stepchildren as part of an inheritable estate without a will specifically including them. Without a will naming a representative, most families typically fight over who is best suited to the job. This situation can lead to expensive and time-consuming litigation.

To avoid probate litigation, your will and the naming of financial and medical durable power of attorney representatives are crucial estate planning elements. To guard against litigation more fully, a revocable trust avoids court oversight altogether except in the case of a challenge. However, if you have been competently overseeing the revocable trust, this presents a formidable challenge to contest.

We hope you found this article helpful. If you have questions or would like to discuss your personal situation, please don’t hesitate to contact our Reno office by calling us at (775) 853-5700.

Estate Planning

The Six Biggest Estate Planning Mistakes

SchulzeLawGroup

Unfortunately, many individuals make costly mistakes without the proper advice and guidance of a qualified estate planning attorney. Beyond undermining your intent and diminishing your financial legacy, poor planning can create additional stress to your heirs in their time of grief.

Six common errors frequently happen during the estate planning process. These mistakes often occur because the complete financial picture was not fully considered. It is easiest to avoid estate planning mishaps by knowing what they are before you begin or looking for these errors when reviewing and updating your plan.

Financial procrastination causes problems. While examining your mortality and making end-of-life preparations is not a particularly fun activity, try viewing it as helping and enhancing your loved ones’ future lives while creating a sense of peace during your own. 

The need to protect your finances using wills, trusts, and power of attorney (POA) documents is not solely the domain of the elderly. Putting off the drafting of legal documents necessary to protect yourself and your inheritors can lead to disastrous outcomes.

By far, failing to create an estate plan is the most common mistake. Even if you do not have a lot of money, you need a will to protect any minor children you have by naming their guardians. Your will also ensures your asset distribution to heirs is carried out according to your intentions when you die and names a representative to handle debt obligations, final taxes, and other estate administrative duties. Dying without a will or “intestate” can lead to dire consequences.

Outdated wills, forms, and POAs create problems. If you made a will twenty years ago and have not reviewed and updated its contents, chances are many of the details no longer reflect current assets or beneficiaries. Estate planning is not a “set it and forget it” proposition. Reviewing estate planning documents and beneficiary forms every two years is generally adequate, barring a major life change such as divorce, birth, death, remarriage, or relocation to another state.

Beneficiaries without coordination can create expensive oversight. Beneficiary forms for retirement accounts like 401(k)s and IRAs, annuities, and life insurance policies may constitute a significant portion of your estate’s assets. These beneficiary forms are legally binding and will supersede the contents of your will. Failure to update beneficiary forms can lead to an ex-spouse receiving assets that preferably would go to your heirs. Routine checks of all beneficiary designations are best practices for estate planning.

Failing to title trust assets properly can lead to probate. While not everyone requires a trust, those who do must carefully retitle their assets into the name of the trust. Forgetting to add more recently purchased property or opening a new account requires you to title them into the trust to receive trust benefits. Whether real estate, cash, mutual funds, or stocks, if you fail to move the asset into the trust, they become subject to the probate court, possible tax consequences (depending on the trust type), and a public record of these assets.

Life insurance can trigger estate tax. Life insurance can provide heirs with liquidity without the sale of assets and tax consequences when handled correctly. However, if a wealthy individual dies while maintaining ownership of their life insurance policy, they may inadvertently create a tax event for their heirs. Although life insurance death benefits are not subject to state or federal income taxes, any “incident” of ownership by the decedent can create an inheritance tax.

An estate planning attorney can help shelter life insurance proceeds from high-value estates by gifting the policy to an Irrevocable Life Insurance Trust (ILIT) or draft a new trust to purchase a new policy where the trust is the owner and beneficiary. A policy owned by the trust does not create a taxable situation to death benefits. Your attorney’s careful structuring of this trust type is complex but can provide proper protection.

Joint ownership of assets with your children can lead to disastrous consequences. Naming your children as co-owners of assets, even digital, permits their creditors to access your money. The better way to address the situation is to give your adult child power of attorney and assign them as a beneficiary to a payable on death bank or brokerage account. This tactic permits them to access your funds if required during your lifetime. However, it keeps your assets from your child’s estate and away from their potential creditors.

Ultimately the biggest error you can make is not finding the right estate planning attorney to guide you. This specialized attorney receives training on avoiding probate, tax implications, and asset protection if you require long-term care. Proper planning with the right guidance will help you avoid costly estate planning mistakes and protect your family’s future financial well-being.

We hope you found this article helpful. If you have questions or would like to discuss your personal situation, please don’t hesitate to contact our Reno office by calling us at (775) 853-5700.

Estate Planning

Inheritance Distribution Amongst Children

SchulzeLawGroup

It may seem that the obvious choice is to distribute your assets equally amongst your children. Yet, in some families, each child receiving the same inheritance can be inappropriate, deplete the estate’s assets due to ensuing litigation, or cause other family issues after you are gone.

While the answers depend on your family circumstances and concerns, be aware of several known scenarios to watch out for as you make your decisions. Without a will, there are sure to be problems between family and loved ones. You may find it difficult to sort out, but creating a will is the responsible thing to do.

Equal? Or Fair and Equitable?

Your estate planning attorney will likely point out that there is a difference between leaving an equal inheritance, where each child receives precisely the same amount, and an equitable inheritance, where you determine what is fair for each child, given their circumstances. The obligation is only to yourself as it is your money and your decision. Should circumstances change, you can amend your will.

Special Needs Children

The first and most obvious inheritance issue happens if the family has a special needs child. After minor guardianship, if your adult special needs child can’t care for themselves, you will want to create a special needs trust. Depending on your financial situation, this trust can take up most of your estate to meet basic living expenses and funds for ongoing medical needs. Siblings will often understand and not be offended by receiving less money. However, it is important to let all children know the arrangements.

This third-party-funded special needs trust can also use life insurance policies to preserve a larger aggregate of the parents’ assets for the rest of the children. The special needs child must receive the necessary financial assistance for functional needs without the risk of losing existing or future government benefits. If the special needs child passes, the leftover trust monies can go to the remaining siblings as secondary beneficiaries.

Caregivers

Another situation that may inspire equitable but not equal inheritance is when one of your adult children acts as your caregiver. Often, this family caregiver is uncompensated for their efforts, works fewer hours in their job, or can’t further their career to fund their social security benefits for their retirement. This situation can have disastrous consequences for the caregiver’s future. Therefore, providing more inheritance to this child can compensate for their family support efforts.

Lifestyles and Financial Circumstances

Your adult children may experience different financial needs during your lifetime. A child who marries and provides grandchildren may need your help funding a down payment on a house for their growing family. If this is not a documented loan with the expectation of repayment, it is wise to consider reducing this child’s inheritance proportional to the financial aid provided earlier. Weddings, grad school, and other life events of your adult children may have created a substantial inequity among the siblings that you want to offset in your will. You can easily address the situation by reducing inheritable cash amounts to the child or children who have already received substantial financial help while you are alive.

Blended Families

Suppose you are a blended family comprised of biological and stepchildren. In that case, managing the expectations of non-biological children who may receive less than natural-born children is a crucial conversation. Honest communication between the parents and writing wills that complement one another brings a sense of fairness to inheritable assets. This will go a long way to avoiding a possible lawsuit. What one stepchild loses in one will, they may gain in their biological parent’s will.

Be of Sound Mind and Free from Undue Influence

If you divide your assets unequally among your children, know that you may be putting your estate plans and children at risk of litigation. Heirs can sue to contest a will, but you can mitigate the likelihood with careful estate planning. An estate planning attorney will be familiar with family dynamics if one inheritor feels slighted. Drafting your will while you are of sound mind and without undue influence from one of your children is a good start. If your other children believe or think they can prove in court that you were subject to another’s manipulative tactics while writing your will, they will likely sue. Do your estate planning earlier in life when it is clear to everyone you know what you want.

Incapacitation

Another legal challenge to your will can be for lack of testamentary capacity. This term means you were unaware or did not understand what you were doing when creating or changing your will. Lack of testamentary capacity may be due to mental illness or a physical condition. Always ensure your will is properly drafted and witnessed by an estate planning attorney to help avoid possible challenges to your will.

No-Contest Clauses

Some states permit a no-contest clause combined with at least a nominal gift that can create an incentive for family members not to challenge your will and any estate trusts. The language in the will (or trust) essentially states that any inheritor who litigates the document as written will forfeit any bequests. While this is not the best option, it may help keep your will intact. The enforceability of these clauses will vary by state, so be sure to talk about it with your lawyer.

A few tips that can help avoid challenges to your will include:

  • Having your medical doctor witness your signature to your will to invalidate lack of capacity claims
  • Use a trust to provide structure and limitations for children who may not responsibly manage their inheritance
  • Exclude all children from your estate planning process and will writing to invalidate claims of undue influence
  • Discuss your will with every one of your children to explain your reasoning and avoid surprises

Ultimately this is your money to divide as you wish, and you have every right to do so. However, if your inheritors perceive inequality, they will likely explore legal options to remedy their inheritance. Weighing your children’s temperaments and their relationships with each other will provide insight into whether leaving unequal inheritance poses a risk to your will. Sometimes unequal inheritance may not be worth what you are trying to accomplish. Evaluate your unique family circumstances and financial situation with your estate planning attorney. Doing the work upfront can mitigate issues after you are gone, leaving your family happy and intact.

We hope you found this article helpful. If you have questions or would like to discuss your personal situation, please don’t hesitate to contact our Reno office by calling us at (775) 853-5700.

Estate Planning

A Comparison of Elder Law and Estate Planning  

SchulzeLawGroup

You may wonder what estate planning and elder law entail and how they differ as you plan for your future, both financially and in terms of health care. Estate planning and elder law also have some similarities.

Even though these two types of law are for different stages in life, they are often handled at the same time. This is because many people wait till later in life to start their estate planning process. When an older person creates an estate plan, they may also need some elder law counseling. To better understand the two areas of the legal field, we will look at the solutions they provide, questions they answer, and how they can work together.

Estate Planning

The main goal of estate planning is to choose legal documents that will determine what will happen to you and your assets once you have passed away or become incapacitated. An estate planning attorney will help you make important decisions, such as:

  • Who makes medical and financial decisions if you are unable
  • Who is allowed access to your medical records
  • How assets are distributed after you are gone
  • Who cares for minor children if you become incapacitated or die
  • Who manages money for your minor children if you are no longer able
  • How to handle your funeral arrangements and burial

Durable Powers of Attorney

By using a general durable power of attorney document, you can name a person, or persons, to make financial decisions on your behalf if you are no longer able to do so. Expressing your end-of-life wishes requires designating a person to make healthcare decisions for you by completing a health care directive. By completing a Health Insurance Portability and Accountability Act (HIPAA) form, you will give your health care providers permission to share your medical records with the people listed on your HIPAA form.

Wills and Trusts

In your will, you can name the beneficiaries of your estate as well as a guardian to care for any minor children you may have at the time of your death. You can also name a conservator to manage the money you leave for their benefit. Some people create a trust, or trusts, to hold their assets during their lifetime and after death. They then sign a pour-over will that moves assets into their trust(s) upon death. You can leave instructions concerning your funeral or memorial service and what you want to happen to your remains in your will or a separate document.

Elder Law

Whereas estate planning focuses mostly on what happens after a person dies, the area of elder law focuses on a person’s last years or months. This can include planning for long-term care and applying for government assistance, such as Medicaid, Medicare, and veterans’ benefits, if applicable. Using elder law tools and strategies, an elder law attorney can help you find ways to preserve your assets while preparing to apply for benefits.

Like estate planning, it is best to start the elder law planning process well in advance. To qualify for benefits, such as Medicaid, you may have to sell or transfer ownership of some assets years before applying for benefits. Gifting or transferring assets out of your name must be done according to government requirements, so applying for benefits can be a complicated process. Hiring a skilled attorney can make the difference between receiving benefits quickly or not at all.

Since seniors are at a greater risk for discrimination, neglect, and abuse, elder law attorneys can help seniors and their family members recognize when a senior’s rights are being violated and take legal action to counter and remedy the situation.

Tying Estate Planning and Elder Law Together

It is best to start your estate planning process as soon as possible since the decisions involved could come at any time due to an accident or an illness. Planning for end-of-life care and the benefits associated with it may come later in life, but preparing well in advance lets you legally reduce assets for an extended period to qualify for benefits, like Medicaid. 

Even younger families just starting their estate planning process may look at elder law planning at the same time for senior family members’ needs. Some estate planning tools, such as trusts, are often used when helping a parent plan for Medicaid and other government benefits for long-term care expenses. An attorney experienced in both estate planning and elder law can advise you in these areas and help you navigate complicated processes. We hope you found this article helpful. If you have questions or would like to discuss your personal situation, please don’t hesitate to contact our Reno office by calling us at (775) 853-5700.

Estate Planning

US History’s Largest Wealth Transfer

SchulzeLawGroup

In all of human history, there has never been a financial time like this one. Baby boomers preparing to pass on their legacies through estate plans put America on the brink of the largest ever transfer of wealth. Over the next 25 years, projections estimate 68.4 trillion dollars will be in motion to create an unprecedented transfer of generational wealth. 

The post-WWII economic environment allowed the growth of assets during decades of economic prosperity. Rising real estate values, stock markets, and favorable tax policies contributed to the baby boomers’ ability to aggregate significant wealth. These 45 million households will see their generational wealth pass to Generation X and millennial inheritors, dramatically shifting the landscape of American wealth management.

Baby boomers collectively hold thirty to forty trillion in assets, controlling roughly seventy percent of all disposable income. While families of already established generational wealth may have plans in place, much of the upcoming wealth transfer hails from self-made men and women who have avoided discussing estate plans and family fortunes with their heirs. Predictions are that Gen X will inherit about 57 percent of these assets, with millennials inheriting the rest. Yet the mechanisms for inheritance through sound estate planning are missing in many of these family systems.

Wealth management groups and estate planning attorneys posit that inheritors will needlessly lose much of their wealth due to parents who failed to develop comprehensive end-of-life plans. On the other side of the equation, younger generation inheritors must ramp up their knowledge about asset management to grow their inheritance for future generations.

Generation X and millennials have vastly different financial experiences and attitudes towards money than their parents. On average, while millennials are the highest-earning generation, they have significantly less money, controlling just 4.6 percent of US wealth in 2021. They have lower levels of financial literacy, are less likely to own a home, and have less interest in investing in the stock market. They also tend to have higher debt after experiencing two recessions before the age of 40, cost of living increases that outpaced wages, and increasing college tuition and vehicle loans.

These younger generations will also change the landscape of financial planning and management. Financial firms will have to bridge the gap of immediate expectation with a generation raised in an era of enormous technological transformation. Smart technology can provide an incrementally higher return on investment through transaction speed alone. Digital financial tools and apps will be the norm, including robot-advisors as a convenience for investing.

Are these younger generations ready to be stewards of generational wealth? Will they see the need to protect this wealth through comprehensive estate planning? To better protect their inheritors’ interests, baby boomer parents can include their children in estate planning goals. The older generation can implement or update an existing plan and guide their inheritors to protect from squandering assets.

Some family systems may find the surest and safest way to protect generational wealth is via trusts. Both revocable and irrevocable trusts can create structure and limit new inheritors’ access to assets. A trust can grow wealth and also save on taxes. The objectives and conditions of a family trust are wide-ranging and easily tailored to a family’s specific needs. 

Charitable trusts and charitable remainder trusts can generate income for heirs while protecting assets and favorable tax consequences. There are also asset-protection trusts, testamentary trusts, and special needs trusts. A qualified estate planning attorney will assess the best trust type(s) for you and your family based on your unique set of parameters. With trillions of inheritable dollars in motion over the next twenty-five years in America, proactive estate planning is key to securing generational wealth for your family. We hope you found this article helpful. If you have questions or would like to discuss your personal situation, please don’t hesitate to contact our Reno office by calling us at (775) 853-5700.