If you do not create a Last Will and Testament or your Will is deemed inadmissable by a court of law, all property in your state of residence and any real property located in other states will be subject to a court supervised probate proceeding in each state.  The court will apply the laws of intestacy relative to its state of jurisdiction.    

Intestacy laws not only establish who inherits, they also decide how much each person receives. When laws from multiple states affect an estate, different heirs may inherit the property in each location.  In some cases, heirs you would have liked to include may receive nothing or heirs you would not have liked to include will receive an inheritance.

Whether you decease with a Will or intestate probate proceedings will be required.  The court will appoint a personal representative or executor or executrix to administer your estate.  The personal representative will work with an attorney to determine what assets are subject to probate and who the beneficiaires or heirs will be in each state where a probate may be required.  This can be a lengthy process.  During this time, family members may not agree on decisions made by the personal representative, which can slow the process down further.

Probate is a costly procedure. Costs include court costs, attorney fees, personal representative fees, publication fees, appraisal fees, tax preparation fees and real estate agent fees to name a few.   

To avoid the concerns that are created by intestacy it is recommended that you work with a qualified estate planning attorney to create a Last Will and Testament.  To avoid the costs and inconveniences of probate altogether ask a your attorney about the benefits of a trust.

Here are some factors to consider when choosing your children’s guardian:

Age

An older guardian, such as a grandparent, will have life experience and maturity, but may, with aging, become physically unable to attend to younger children. On the other hand, a child who has already reached adulthood may have a very close relationship with your younger children. You must take into account whether or not that older sibling will have enough life experience to provide proper guidance.

Lifestyle

Consider what type of lifestyle is important to you. Do you mind if your caregiver is unmarried? Also consider if your choice has other children and if the added responsibility of your own children may be too much.

Ideals

It would be best if your chosen guardian could step in to raise your children the same way you would, but that may not always be possible. Each person on your guardian list will have a different parenting style and may teach your children different morals and values.  If you prefer that your chosen guardian observe a specific religion, you may want to make this a major consideration in your decision.

Willingness

What if your chosen person has plans to travel around the world? Or what if that person is doubtful of his or her parenting abilities and is therefore unwilling to take the job? When you narrow your list to five choices, you may want to ask each person if they are willing to take the position.

Relationship

Your child will do best if the guardian is someone with whom he or she already has a close relationship. If you feel your top guardian choice has had limited access to your child, it would be best to start including that person in your child’s life on a regular basis. This could give you a better idea if that person is the right fit.

As you evaluate all of your caregiver options, narrow your list down to two or three choices and rank them. You can use your second and third selections as back-up guardians, in case your first choice becomes unavailable.

For more in-depth insights on this topic see our website: www.KISStheKids.com.

If you don’t have a Trust or Will then you will have died “intestate” and your estate will be distributed according to the laws of the state of your residence and any other state where you might own real estate.

Now, before you start thinking this might not be so bad, consider this:

When you die intestate, you have no say over how your assets are distributed or who will oversee the process. With a Will, you may designate an executor, someone you trust to ensure your estate is properly administered and that your assets are divided up the way you want.   This process is overssen by a court and is known as a probate.  A Trust works in a similar way allowing you to designate a Trustee to oversee the process except that a court is generally not involved maintaining the privacy of your beneficiaries.

But in the absence of a Will or Trust, the court will appoint a personal representative to oversee your estate. This person will be responsible for not only distributing your assets but also settling any outstanding debts and selling off assets if there’s not enough funds in the estate.

That means that some of your most treasured heirlooms – the baseball card collection, the antique grandfather clock or your great-grandmother’s sterling silver tea set may very well end up being sold in an auction rather than in the hands of your loved ones.

And of course, you won’t be around to stop it.

To learn more about the dangers of dying intestate and to create your own estate plan, contact our office today.

For starters, a Living Trust allows your heirs to avoid probate, an often costly and time-consuming legal process used to distribute your assets. With a Trust, the distribution is handled within the Trust documents and because the Trust technically owns the assets, no probate is required.

Another benefit is that unlike a Will, the details of your Trust are not public record. That means your estate remains private and your loved ones are protected from would-be con artists and overly aggressive sales people looking for a quick bargain.

A Trust also gives you some options that you can’t get with a Will. You can create incentives for your heirs for example, allowing them to increase the amount of their inheritance by achieving certain goals and objectives. Perhaps you set up the Trust to match whatever income they earn on their own or to encourage higher education, your heirs can receive a bonus if they graduate college.

Likewise, you can use your Trust to ensure that heirs with behavioral problems or addictions get help before inheriting a large sum of money.

A Living Trust also streamlines the entire distribution process and allows you to create a legacy that can provide for multiple generations to come.

To learn more about the benefits of a Living Trust, contact our office today.

A solvent estate means that there are enough assets to cover your outstanding debts and still provide some form of an inheritance to your heirs.

But if your estate is insolvent, you don’t have enough assets to cover your debts and your heirs end up with nothing.

How can this be, you wonder?

Before your heirs can inherit any portion of your estate, your outstanding debts must be settled. There is a legal procedure for this of course, and any creditors wanting to file a claim against your estate must do so within a certain amount of time.

However, if a creditor does file a claim and the debt is valid, your executor or personal representative must use funds from the estate to pay the debt. If there aren’t enough liquid funds, the executor will sell off assets to create the cash needed to cover the debts.

The more debt you have when you die, the more assets that may need to be sold to pay off your debts.  If your outstanding debts are greater than the value of the estate, there won’t be any assets left for your loved ones to inherit.

To prevent this scenario, you need to start planning now. A good estate planning attorney can help you draft a plan that addresses your debts and earmarks funds and/or assets to cover them. This will ensure that your loved ones receive the heirlooms and inheritance you want them to have.

To learn more about debt planning, give us a call today.

The time required to complete the probate process depends on several factors, including:

• The complexity of the estate
• The applicable laws and the documents that must be filed
• The manner in which the deceased left assets, whether those assets were organized and easy to locate, and whether all necessary documents are available
• Locating creditors and settling debts
• Settling the lawsuits, if any, against the estate
• Lawsuits contesting the Will, if any
• Locating beneficiaries
• The tax position of the estate

With the above factors in mind, the probate process may be completed in nine to twelve months or may take years.  The probate process can be delayed if the validity of the Will is contested, if there are disputes relating to the settlement of the debt of the deceased, or if there is a delay in finding beneficiaries. Tax issues can also delay a probate process.

The cost of a probate process may be set by the applicable state laws or by practice and therefore differs from state to state and case to case. The general costs included are:

• Appraisal costs
• Personal representative fees
• Court costs
• Cost of a surety bond
• Legal and accounting fees

Although some of these charges are fixed per state law, legal and accounting fees can be negotiated.  However, in case of any type of disputes or litigation, the probate process may continue for months, if not years, and involve a number of additional costs.

You can receive a free report detailing the probate process by going to our website.

POAs are frequently seen in real estate dealings and brokerage accounts, but they also play a big part in your estate plan.

If you were to become disabled, you’d want to have someone who could speak on your behalf with regard to medical treatments and someone who could take over your financial affairs.

A Healthcare Power of Attorney can handle the medical issues and a Property Power of Attorney can see to it that your finances are in order. But these will only work for you if they’re “durable” – meaning that these documents are not automatically revoked in the event you become mentally disabled.

To make a POA durable, you have to properly state that intention in the document itself.  The statutes in Nevada recommend the language that should go into the power of attorney document.

To learn more about Powers of Attorney and planning for disability, contact our office today.

But before you have your loved ones certify your Will, keep in mind that this may create problems you had not thought about.

by law, anyone who stands to inherit under your Will must not be a witness. This includes not just your spouse and children but also any siblings, aunts, uncles and even friends.

And here’s why:

A witness is attesting to your state of mind when the Will was made. They are telling the courts that, to their knowledge, you weren’t be coerced, you weren’t under duress and you were thinking clearly when you decided how your assets would be distributed.

But let’s say that someone decides to contest that Will after you’re gone. If Uncle Bob gets the greatest share of the estate and is also a witness to the Will, who’s to say he didn’t influence your decision regarding how the assets should be distributed?

Or, someone could claim that Uncle Bob found information that could be embarassing and threatened you with it.

 To remedy this, you should always choose witnesses that have absolutely no interest in your Will. This means that not only should Uncle Bob not be a witness but Uncle Bob’s girlfriend shouldn’t play the part either.  A staff member in the attorney’s office is usually a good choice.

The more neutral the witnesses, the better chance you’ll have of the courts enforcing your Will in a contest.

To learn more about writing a Will and why you shouldn’t do it yourself, contact our law firm today.

An advantage is that the trustee may be given the flexibility to spend the funds in any way he or she sees fit. That means that little Jimmy could have tuition paid to attend a trade school while Mary’s tuition at an accredited university is paid if that’s what the trustee determines is in their best interests. However, if you gave a trustee broad discretion to make these types of decisions, you should be assured that your trustee is someone in whom you can place your confidence to make the decisions  as you would desire.

Another consideration is that the trust is set up to operate until the youngest of the children reaches the designated age. Any funds then remaining in the trust would be disbursed equally to all the children. But if there’s a large gap in ages between your children, the older children may be waiting a significant time to receive thier portion of the inheritance.

Of course a pot trust is only one toll of many to provide an inheritance for your children after you’re gone. To learn more about estate planning for involving young children, call our office today.

For starters, the Roth IRA is a contact that directs the payment of the balance of the account at your death to  your designated benefivciary.  So any funds that remain in the account when you die can be passed to your designated beneficiary without probate. But unlike other retirement plans, the Roth IRA doesn’t require you to begin withdrawing money at age 70 ½.

With a traditional IRA, for example, you must make minimum withdrawals beginning at age 70 ½. This amount will vary depending upon your age and the age of your designated beneficiary. The reason for this requirement is to ensure that you – not your beneficiary – receives the bulk of the funds in your IRA before you pass on.

A Roth IRA, however, doesn’t require you to withdraw any funds.  So, unless you need the money, you can just leave it in the Roth IRA where it will continue to grow. Upon your death, all the funds will pass to your beneficiary, income tax-free.

To learn more about ways to avoid probate, call us today.