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Wills and Trusts

A Will or Trust and Life Insurance are the first order of defense when trying to preserve one’s life work from life’s unsuspected on-coming forces. 

Make the decisions for your heirs now, or the court will make them for you later!

Note: In all cases, when implementing a will or a trust, legal advice is a must!
 

Life’s Defensive Moves!


What is Probate?

There exists in all jurisdictions, in all states, a court called probate.  It exists to concern itself with the administration and distribution of estates.  All fees and expense of your estate must be paid before your assets can be distributed. 


What will happen if you don't have a Will or Trust or Life Insurance?

Dying without a Will is dying in testate. If you do not specify through a “valid’ Will or Trust who will receive your property, the laws of the state in which you live will write a will for you.  They will control and distribute your property to your heirs.  The state’s distribution of your property may have no resemblance to the one you may have specified had you elected to document your wishes in a will.  Out-of-state property requires probate proceedings to be held in that specific state for the property in question.


How are minor children affected?

What happens if both parents died in a common accident?  If you fail to nominate a guardian of property for your minor children, the state will appoint a person you might not even know as their legal property guardian.  By naming a successor trustee for your minors, you make it unnecessary for the court to appoint a special trustee of the “property’ of your child. But that is not enough.  There is the issue of the guardianship of the child’s “person”.  Guardianship is also a matter of state law, of which the underlying universal rule is that a child who is an orphan is a ward of the court. A parent, by will or trust, has no definite right to absolutely name a guardian of the child’s “person”. These documents will, however, at least serve as an indication of your wishes to the court.  This process will take a good bit of time.  Time, which your minor children may not be able to afford. 
 

A Will   

A properly drawn “Will’ is the legal document that allows you to distribute your property to those you choose. It allows you to designate beneficiaries to receive specific items from your estate, and other beneficiaries to receive everything else. If, for example, you want your house and your car, to go to a certain person or organization, you designate that person or organization as the beneficiary of those items. A Will also gives parents of minor children the chance to nominate a guardian. Again, the court makes the final decision when appointing a guardian for your children after your death.
 

A Trust

A Will comes into play only after you die, but a trust can benefit you while you are still alive. A living trust for example, is a trust established during your lifetime. It can be revocable, which allows for you to make changes. You can transfer substantially all of your property into your living trust during your lifetime, and any omitted assets can be transferred into the trust at the time of death through the use of what is called a Pour-over Will. You should always make a “Pour-over” Will at the time that you establish your trust. There are many types of other trusts arrangements available that you may want to consider.
 

Some differences between Wills and Trusts

Both Wills and Trusts are devices, which you can use to provide for the distribution of your estate upon your death. Deciding whether a Will or a Trust best fits your needs depends on your circumstances. A living Trust is a popular alternative to the traditional Will, but you should weigh the advantages and disadvantages of each before deciding on one form or the other.    In all cases, legal advice is a must!
 

What happens at probate time?

The executor is the person you designate to carry out your wishes. The executor will present to probate court your will/trust and an inventory list of both the assets and liabilities of your estate.  The court will then determine that the document(s) are legal and accept them for probate.  The court will order legal notice to creditors and interested parties.  The court will hear claims from these parties and rule on them. All expenses must be paid before distribution can occur.
 

What Kinds Of Property Avoid Probate!

There are three types of property that may pass to your heirs without going through the probate process.

1.
     Life insurance that is payable to a named beneficiary.

2.       Property that is jointly owned with right of survivorship.

3.       Property held in a “living” trust.
 

What role does Life Insurance play?

Life insurance policies payable to a named beneficiary are exempt from probate and in most cases; the proceeds of the policy are exempt from state and federal income and inheritance taxes.  However, if a life insurance policy is payable to your estate, it is subject to probate and all taxes.  Life insurance can also create an estate when there are little or no other assets in your estate.  It creates immediate cash to the named beneficiary; cash that can be ear marked to pay creditors upon your death, thus making it unnecessary for your heirs to sell other property in your estate to pay these creditors, or to pay other final expenses.
 

Property that is jointly owned with right of survivorship:

Most people think and use joint ownership as a substitute for a will.  Joint ownership is often referred to it as “the poor man’s will.”  It is true that it avoids the delay, expense, and the publicity of probate; however, in most cases it creates more problems than it solves.

Not all jointly owned property is exempt from probate.  A deed showing a husband and wife owns a home jointly, may be deemed by the court, as “tenants in common.”  Assume the husband dies first. His share of the house would not automatically pass to his spouse. Its disposition is determined by his will.  If there is no will, his share will be distributed in accordance with the laws of the state in which he lives.

Many state laws view it this way. In a marriage without children, if a man dies in testate, that is leaving no valid will, only the first $5,000 of his estate my go to his widow.  The balance of his estate will be shared equally with her deceased husband’s parents.  In the case of a couple with children, the widow could receive one-third of his estate and the children could receive the remaining two-thirds. 

If their joint ownership of their family residence is determined to be as “tenants in common,” his share will go to his wife and children in a proportional amount.  A title with minor children owning part of the home are what nightmares are made of.  As minors, the children, will not be able to “sign off” in favor of their mother.  Someone will have to apply to the probate court to be appointed the children’s guardian.  The guardian can then act for the children.  The obvious guardian would be their mother, but in such circumstances, the propriety of the mother’s, acting as guardian to turn the children’s property over to her, might be questioned by the court. 

A way to avoid this is by having the husband and wife hold the property under a survivorship deed which would provide that, upon the death of one, the property would revert in its entirety to the survivor, or by making certain that each of the couple has made a valid will leaving his or her interest in the property to the other.

Under the survivorship deed arrangement, there will be no probating; if it passes under a will, however, the will itself must be probated.
 

What about banks?

Most couples have joint checking or savings accounts.  It is not uncommon for banks to block such accounts upon the death of one of the co-owners.  In some states, only a representative of the probate court can open safe-deposit-boxes of deceased persons.  This would make it desirable for husband and wife to have separate boxes.
 

Property held in a “living” trust, could be the magic defense!

The magic defense is the “living” trust, which creates a financial bridge from one generation to another.  When you set up a living trust, it is created currently, while you are alive, as opposed to being the instrument of a will after you are gone.  Because you certified that the trust is genuine while you are living, there is no need for a probate judge or other person to check to determine whether it is genuine.  

All trusts require a trustee.  The trustee of your living trust can be either an institution or an individual.

The living trust can be either revocable, you can change its terms, or irrevocable, you cannot change its terms. The living trust offers an excellent solution for those persons that would be benefited if they were relieved of the details of handling investments or a business which age or ill health may make burdensome or even impossible.  Establishing a trust during your lifetime allows you the opportunity to observe the individual or institution, which you have named as your trustee. It gives you the opportunity to see your will in action.

If the laws of the sate of your residence are not to your liking, you can avoid them by setting up a living trust with an institution in another state whose laws you find more favorable.

The living trust can completely eliminate a successful attack on your estate.  The publicity of probating a will invites attack upon the will, while the privacy of a living trust discourages attack.  The living trust makes the assets of the trust available immediately to your named heirs.

Author’s note:  The intent of this article by longtermcare.termlifeamerica.com is to inform and motivate the general public into action.  One should consider only a qualified practicing legal individual or entity, in the state in which you reside, to establish properly drawn documents of this type.
 

Long Term Care Insurance Companies

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