You have just lost a loved one, and now comes the dreaded words: you need to go to probate. Sure, dealing with a court is never fun. However, there are things you can do to make the process easier on your family. Here are three keys for a successful probate.
Hire the Right Probate Lawyer
Some people will tell you that you do not need a lawyer for probate. True, the rules allow parties to represent themselves in all cases – including probate. But is that smart? Oklahoma probate law is highly complex and technical. Any mistakes in following the procedures can lead to months of delays or, worse yet, subject the personal representative to legal liability. So, what should you look for in a lawyer? My recommendation is to find someone who specializes in estate planning and probate. Further, good organizational skills are a must since probate has a lot of moving parts.
Communicate Early and Often
The last thing you want is dissension among the family. In my experience, the number one cause of disputes in probate is lack of communication. The personal representative might be doing everything by the book. Nevertheless, if he or she keeps other heirs in the dark, suspicions tend to grow. For that reason, I always advise clients to go beyond the basic notice requirements and be fully transparent about all aspects of the probate, from the assets of the decedent to creditor claims and administrative expenses.
Follow Court Orders
Throughout a probate, the court will issue various orders. It is vital that the personal representative follow them. It may not seem like a big deal as long as you are “doing the right thing”. Unfortunately, title examiners, banks, real estate agents and others working with an estate do not always see it that way. These parties want to know that the personal representative is operating within the law and has full legal authority to perform the action in question. If you are unsure about the particulars of an order from the probate court, ask your lawyer.
Probate takes time, but it does not have to cause misery. By hiring the right probate lawyer, communicating well and complying with court orders, you can ensure a successful process.
As I’ve said many times before, estate planning is an ongoing process. This is particularly true of living trusts. In order to achieve your goals, it is vital that you update your trust over time. When should you update your trust, and how? That is the subject of today’s post.
When to Update a Living Trust
There are three instances when you should consider updating a living trust. The first is a change in personal circumstances. By that, I mean things like the birth of a new child or grandchild or getting married. Such events could alter your desired beneficiaries and the shares they receive or who you want to manage your affairs (for instance, newlyweds will likely want to make their spouse the health care decision maker). Secondly, similar to a change in personal circumstances, any significant changes in your finances could warrant amending your trust. Finally, the passage of new laws might make parts of your trust obsolete. A good example is the recently-enacted Tax Cuts and Jobs Act, which doubled the federal estate tax exemption amount and overhauled the business taxation structure.
How to Update a Living Trust
I cannot stress this enough: do NOT update a living trust on your own. Your attempts to do so may be legally invalid or, worse yet, cause severe unintended consequences. The best thing to do is contact the attorney who originally drafted your trust. He or she is likely to be most knowledgeable about its terms and provisions. However, if your attorney is retired, no longer in practice or has moved to a different city, then you can reach out to a new attorney. Personally, I offer free estate planning reviews to prospective clients.
The hard part is getting a living trust in place initially and funding it. Once the trust is created, updating it throughout the years is fairly easy, provided that you know when and how to do so.
Introduction – Non-Tax Reasons for Estate Planning
The Tax Cuts and Jobs Act doubled the federal estate tax exemption to over $22 million for married couples. Some are now asking: “What’s the point of estate planning?” Minimizing estate taxes should be a goal for high net worth clients. Yet, it’s not the only reason to plan. In fact, estate planning is more important now than ever. Here are three reasons why:
Taking Advantage of New Business Provisions
The Tax Cuts and Jobs Act significantly altered business taxation. First, the legislation lowered the corporate tax rate to 21%. Second, it created new, favorable treatment for pass-through entities. This includes partnerships and S corporations. Given these provisions, business owners should reevaluate how their companies are structured. Changes could result in a lower tax bill.
Preparing for the Possibility of Incapacity
Medical experts predict that the incidence of Alzheimer’s and dementia will triple by 2050. Thus, it makes sense to prepare. Durable powers of attorney, Advance Directives for Health Care (also known as a living will) and trusts allow loved ones to make decisions for you in the event of incapacity.
Estate planning is about your legacy. You have worked hard for your money. Nevertheless, in the absence of proper planning, your beneficiaries’ inheritances can be lost to creditors, divorcing spouses or even the government. Fortunately, trusts can protect that money by controlling the timing and manner of distributions.
Don’t let the increased federal estate tax exemption give you a false sense of security. Estate is still something everybody should do. By planning properly, you can minimize income taxes, plan for incapacity and preserve your legacy for generations to come.
Introduction – I Already Have an Estate Plan…Now What?
Estate planning is something many people put off for years or even decades. After all, nobody wants to think about death. Once you have an estate plan in place, then, it would be understandable to set it aside and focus on more pleasant things. Unfortunately, however, estate planning is not a one-time event. In order to ensure that your wishes are fulfilled, you should update your estate plan over time. How often? Here are two key indicators:
Change in Personal/Financial Circumstances
A change in your circumstances calls for a review and update of your estate plan. If you have additional children, for instance, you’ll want to make sure that your will or living trust provides for them. On the financial side, an increase in your net worth due to investments, saving or inheritance may require amending your estate plan to minimize estate taxes.
Recently, Congress passed and President Trump signed the Tax Cuts and Jobs Act. Among other things, the Tax Cuts and Jobs Act modified the business tax structure as well as doubled the federal estate tax exemption. With regard to the former, if you own a business, you may consider reorganizing the business as a different type of entity (e.g. converting from a C corporation to an S corporation or LLC). Concerning the latter, in the event your estate is valued at less than the new exemption amount ($10 million, indexed to inflation), an existing living trust could be simplified to remove some of the more restrictive provisions.
Conclusion – Good Estate Plans Must Be Fluid
This post has summarized a couple reasons for updating an estate plan. There are no doubt many other factors at play. The bottom line is that estate planning is fluid. As you formulate your goals for 2018, updating your estate plan should be on the list. Happy New Year!
Recently, President Trump signed the most significant tax reform in generations. The legislation will have considerable impacts not only on the nation’s economy but also on estate and business planning. Beginning next year, many changes are afoot. Two such changes relate to taxation of estates and certain business entities.
Doubling of the Estate Tax Exemption
The current estate tax exemption is $5 million, indexed to inflation. Tax reform doubles the estate tax exemption for deaths after December 31, 2017. As a result, individuals can now pass up to $11 million (or $22 million for married couples) to their heirs tax-free. Given the increased estate tax exemption, clients should revisit existing estate plans. In particular, there exists an opportunity to simplify complex trusts.
Deduction for Pass-Through Businesses
The term “pass-through business” refers to one in which the owner reports business income on their personal tax return. Examples of pass-through businesses include partnerships and LLCs taxed as S corporations. Tax reform created a new 20% deduction for owners of pass-through businesses. While there are limitations for certain service-oriented businesses such as doctor’s offices and law firms, the new deduction is a potentially major tax break for small businesses. Consequently, small businesses presently structured as a C corporation should consider reorganizing as a pass-through entity.
It remains to be seen how tax reform will operate in practice, and estate and business planning strategies will be refined as the IRS fills in the details over the coming months. Nevertheless, now is the time to take advantage of tax reform’s benefits, especially the increased estate tax exemption and the preferential treatment of pass-through businesses.
Estate Planning 101 – Incapacity
When most people hear “estate planning”, they think about post-death. Yet, a sound estate plan also deals with incapacity. None of us can predict Alzheimer’s or stroke. Therefore, it’s best to be prepared. What follows is a summary of the key estate planning documents for addressing incapacity.
Durable Power of Attorney
In a durable power of attorney, you appoint an agent to make decisions regarding your finances and health care. A durable power of attorney can be either immediate or springing. An immediate durable power of attorney is effective as soon as you sign it. By contrast, a springing durable power of attorney takes effect only in the event you are determined to be incompetent. Most springing durable powers of attorney require two doctors to make this decision.
The living trust is an excellent tool for managing incapacity. Banks and financial institutions sometimes refuse to work with an agent under a durable power of attorney. In other cases, they could mandate the execution of additional forms. Successors trustees almost never face such difficulties. Moreover, with a living trust, you have the freedom to define incapacity however you like. For example, you can designate a special panel of people – comprised of doctors, family members and even your pastor – to make the decision concerning your incapacity.
Advance Directive for Health Care
An Advance Directive for Health Care sets forth your wishes on end-of-life treatment. This is important since opinions pertaining to life support vary widely. By making your wishes known ahead of time, you can remove the burden on your loved ones and lessen the likelihood of emotional disputes. An Advance Directive does one more thing: it gives you a chance to donate your organs and other body parts to transplantation and research.
While incapacity is unsettling, it’s a possibility everyone must confront. A durable power of attorney, living trust and Advance Directive for Health Care help ensure that you will be treated with dignity both during your life and after death.
Can you believe it? 2017 is already almost in the books. In the midst of holiday shopping, you may want to consider adding a living trust to your list. Here are three reasons why living trusts are the gift that keeps giving for generations to come:
Privacy and Ease of Administration
Let’s face it: probate is the last thing you want to deal with when grieving the loss of a loved one. By contrast, living trusts maintain privacy and provide ease of administration. That’s because trust administration is handled in-house, i.e. outside the court system. What’s more, the trustee – unlike the personal representative in a probate case – does not have to comply with burdensome notice requirements and strict deadlines for completing key tasks.
Living Trusts Protect Beneficiaries
Sadly, no one has a perfect life. Whether it be from debt and creditor issues, tax problems or a shaky marriage, we want to protect our families. Structured properly, living trusts give you the opportunity to do so. This ensures that your hard-earned money goes only to the people you want.
As medical advances allow us to live longer, the risk of incapacity increases. Unpleasant as the thought may be, at some point you may become unable to manage your financial affairs. Durable powers of attorney are a good start. However, successor trustees usually have an easier time dealing with banks and financial institutions than an agent acting under a durable power of attorney. Living trusts also enable you to specifically define what constitutes incapacity depending on your individual circumstances.
December is a time when we reflect on the year that was. In addition, many of us enjoy time away from work. When making your list and checking it twice, think about estate planning and living trusts.
Introduction – Estate Planning Today
For years, the primary goal of estate planning attorneys was minimizing or eliminating estate taxes at both the federal and state level. In 2010, the state of Oklahoma abolished its estate tax. Now, the federal government may do the same. That’s according to a blueprint that the Trump Administration and key Congressional committees released today. It’s called the Unified Framework for Fixing Our Broken Tax Code.
How Would the Unified Framework Impact Estate Planning?
The proposal would eliminate the federal estate and generation-skipping transfer taxes, which in 2017 apply to estates valued at greater than $5.49 million. What does that mean for you? If enacted into law, individuals would be able to pass unlimited sums of money to their heirs tax-free. Although relatively few Americans pay federal estate taxes, this would nevertheless represent a significant shift in the focus of estate planning. Rather than worrying about taxes, estate planning attorneys and their clients could concentrate on avoiding probate and protecting heirs from creditors and lawsuits. What’s more, clients with complex estate plans might have an opportunity to simplify their documents.
Conclusion – Estate Planning Attorneys and Clients Stay Tuned
It remains to be seen whether there’s enough support in Congress for this plan. However, given the ramifications of such a major change to our tax laws, estate planning attorneys and their clients should closely monitor the proposal’s progress.
Probate is the court-supervised process of a distributing a deceased person’s property and money. Due to the time and costs involved, one should strive avoid it. However, for a variety of reasons, that is not always possible. What, then, can the Personal Representative do to make it easier? Here are three tips:
Follow Orders of the Probate Court
Personal Representatives have a fiduciary duty. This means the law requires them to act in the best interests of the estate. During a typical probate case, the court will enter a variety of orders – from authorizing the sale of property to decreeing distribution. The Personal Representative should strictly comply with all court orders.
Communicate with Family During Probate
Often, lack of communication is the biggest source of friction between the Personal Representative and other family members. Throughout a probate case, the law mandates notices to heirs and beneficiaries under the Last Will and Testament. Yet, the Personal Representative should go a step further and inform the parties even when formal notice is unnecessary. I advocate a family meeting at outset to help everyone get on the same page.
Keep Track of Probate Expenses
The Personal Representative usually incurs expenses and receives income. It is important that he or she keep track of receipts and disbursements as they occur. Before being discharged, the Personal Representative must file an accounting. If the Personal Representative does not keep accurate and timely records, there could be a delay in closing the estate.
In a time of grief, probate is the last thing anybody wants to endure. But the Personal Representative can facilitate a less burdensome experience by following court orders, communicating with family and keeping track of expenses. One more thing: Oklahoma probate laws are complex and highly technical. While some are inclined to represent themselves, I highly recommend employing competent counsel. For more on the duties of a Personal Representative, click here.
Estate planning and revocable living trusts. Between summer vacations, outdoor activities and backyard barbeques, it may not be top of mind. However, with the Fourth of July behind us, now is a good time to address this issue before the back-t0-school rush. Today I am beginning a series of posts entitled Estate Planning 101. The first topic is revocable living trusts.
Revocable Living Trust Defined
A revocable living trust is a legal arrangement whereby a person (the trustor) transfers property to another (the trustee) who manages it for beneficiaries. Because the trustor can amend or terminate the arrangement, it is called revocable.
How Do You Create It?
The trustor creates a revocable living trust by signing a legal document and transferring their property to the trustee. The process of transferring one’s assets to the revocable living trust, which estate planning attorneys call “trust funding”, is a vital step. Absent funding, the estate plan will be ineffective. For most people, funding entails signing new signature cards for bank accounts, completing beneficiary designation forms for IRAs, 401(k)s and life insurance policies and recording deeds for real property including the primary residence.
The Advantages of Revocable Living Trusts in Estate Planning
First and foremost, revocable living trusts avoid probate – a huge benefit. Probate is expensive and time-consuming. Probate also results in the loss of privacy and makes legal challenges to your estate more likely.
In addition to probate avoidance, revocable living trusts are advantageous for asset protection. What is asset protection? This means ensuring that your beneficiaries’ inheritances do not inadvertently end up in the hands of other parties such as creditors, ex-spouses or the government. Click here for more on asset protection in revocable living trusts.
Lastly, revocable living trusts can minimize or eliminate estate taxes.
Revocable living trusts are an excellent estate planning tool. Some balk at the cost. While more expensive than a basic will, they offer several advantages. A knowledgeable Norman, Oklahoma estate planning attorney can assess your circumstances and help determine if a revocable living trust is right for you.