One day William’s daughter read in an article that a will was not the best way to leave property to heirs. Wills often involve long and expensive court proceedings and there are other, more efficient ways to pass on savings to family. But William was a person who knew his own mind, and he felt sure that a simple will would be good enough for him.
A will without court approval is nothing more than the paper it’s written on. Wills, by themselves, are not enough to prevent property from staying “stuck” in a decedent’s name. The only way a will could be effective, to give William’s daughter the inheritance he wanted her to have, was for his daughter to go to court after he passed. Courts make sure that wills are valid, debts are paid, and – despite whatever the will may say – whether other family members might also have a legal right to a portion of the estate. Worse, because probate court files are public record, anybody off the street could have open access to all documents filed there, including wills.
So when William’s daughter filed in probate court after he died, she soon found herself besieged by get-rich-quick con artists. William’s estranged second wife’s children showed up to demand a piece of his estate. When a small loan William owed on his house was discovered, a property broker flagged the house for foreclosure and the daughter’s lawyer had to move fast to keep the house off the auction block.
It took over three years to resolve these complications. Even simple probate matters can end up costing between two and eight percent of the total estate value. William’s daughter had to pay around $30,000.00 in court costs, attorneys’ fees, and accounting expenses. She then had a minor traffic accident. Even though nobody was hurt, the other driver sued her and she eventually spent a significant chunk of the rest of her inheritance on attorneys’ fees and court charges.
If only William had heeded his daughter’s advice, these difficulties could have been avoided or minimized. Here is what an experienced Marietta estate planning attorney could have recommended instead.
Making his bank account “POD.” William kept a modest sum in a savings account. He could have left that money to his daughter using a “payable on death” (POD) designation, simply naming his daughter as owner of his account on his passing. Then all his daughter would have to do would be to present William’s death certificate and proper identification, and the bank would pay over the funds to her. No fees, no fuss, no exposure.
Deeding his house. There are several inexpensive and effective options to use deeds to transfer ownership of real estate automatically, without the need for probate. An attorney would know which kind of deed would have suited William best.
Protecting the inheritance. William had several antique cars worth around $50,000.00. An attorney could have created a trust for William, transferred ownership of the cars into the trust, and named his daughter as trustee. As long as the trust was carefully drafted, the money those cars could fetch might have been protected from the accident litigation.
Small-estate proceedings. William’s estate was too large to benefit, but, for smaller holdings, most if not all states permit shortened and simplified proceedings that avoid the costs and delay of full-blown probate proceedings. These go by various names, including “small-estate” or “voluntary-administration,” or “summary-administration” proceedings. As long as an estate is worth less than the upper limit set by law, property can be distributed without the court supervision that probate proceedings otherwise require. The limit varies depending on the state, generally between $30,000.00 and $100,000.00. In Georgia, accounts with less than $10,000 can be transferred by affidavit and without probate and so can automobiles.
When it comes to wills, there are many better alternatives that would have kept William’s financial affairs more-efficiently managed and private. Attorneys know. Please ask. Call our Marietta estate planning lawyers at 770-425-6060 and let us educate you so you can make the decision of what planning tools are best for you and your family.
Will and Trust lawyers in Marietta have the important job of helping their clients create a legacy that is compliant with a number of different laws. For the most part, these laws will vary from state to state. Some differences are minor, while others can impact an estate plan significantly. Someone who already has established a will, trust, or other legal documents in one state should probably review their documents with a qualified attorney before relocating to another.
For example, if you created a trust in Georgia but then move to Florida for retirement, you will want to talk to a local Florida attorney to ensure that your wishes would still be honored and your new property protected under Florida state laws. If you don’t know a lawyer in your new state, ask your current attorney if he or she can help make a referral.
If you are not moving away for good but still plan to buy property out of state, perhaps to live as a “snowbird” for half the year, you still need to notify your lawyer and ensure you have plans that work under each state’s laws. Otherwise, you could wind up in a situation where your estate goes through two separate probates, and your family is forced to fly all over the country to handle your end-of-life affairs.
There are some additional estate planning documents that should always be addressed with an estate planning lawyer when moving to a new state. Powers of attorney are vital for determining who can represent you should you become incapacitated, and those are administered under state law. Powers of attorney drawn up by a will and trust lawyer in Marietta may be disregarded by the courts in another area of the country so again, talk to your lawyer to ensure your documents will remain in compliance.
A final consideration in the discussion of where to establish a trust is the tax implications. By working with a qualified Marietta will and trust lawyer, you can uncover which state may hold the highest benefits for you, your estate, and your heirs for tax purposes. It is possible to have trusts set up in more than one state, though the complexities of doing so are absolutely something that should be done with the guidance of a knowledgeable professional with plenty of experience in trusts administration.
Because estate planning documents take time to put in place, talk to your lawyer well before the date that you plan to leave the state for good. That will ensure that your documents will work as you intend them to, no matter where you are in the United States! For help getting started, contact our Marietta will and trust lawyers at 770-425-6060 to schedule a consultation.
Happy New Year 2018! Resolving to get your legal affairs in order is one of the most important things you can do to make sure your family, wishes, and assets are protected if something unexpectedly happens to you this year.
While many people focus on getting out of debt or getting organized for the New Year, estate planning is an equally important personal finance goal that should make every adult’s to-do list.
That’s because far too many area residents are without plans to protect their family, wishes and assets should something unexpectedly happen to them. A recent Lawyers.com survey further reveals that only 35% of adults have a basic will or other estate planning documents in place should death or incapacity occur.
Contrary to popular belief, estate planning isn’t just for the rich. At a bare minimum, every adult needs a basic will, power of attorney and health care directives in place to avoid a legal and financial nightmare if something unexpectedly happens to them.
So what are these documents and how do they help you in a time of emergency?
- Will – A will is a document that specifies what should happen to your assets if you pass away. A will may also contain guardian nominations to dictate who will care for your minor children if something unexpectedly happens to you.
- Trust – A trust is a legal entity that can hold title to property. With your assets securely placed in a trust, you can minimize your financial exposure to lawsuits, divorce, and bankruptcy while alive. Upon death, a trust will keep your affairs private and out of the probate court. It also allows a great deal of control for people who do not want their inheritance going outright to their heirs if something unexpected happens.
- Power of Attorney – A power of attorney or POA gives explicit permission for someone to access your personal accounts, pay your bills and handle all other financial and legal affairs if you are incapacitated in an accident but do not die. Under the current privacy laws, even a spouse may have a hard time accessing personal information without such documentation in place.
- Advanced Health Care Directive – Also known as a living will, this document specifies your healthcare wishes if you are incapacitated in an accident and unable to speak for yourself. Such wishes may range from whether you want certain medications administered to when (if at all) to start life support in critical situations. This document also allows you to appoint the person best suited to carry out such wishes should incapacity occur.
Accidents and serious illness happen every day without warning. That’s why it’s so important for any adult who has not tackled their estate planning to add it to their resolutions this year. It will save your family from years of headaches and thousands of dollars in unexpected costs should the unthinkable happen.
Make this your New Year’s resolution this month: “I will get my estate plan in place or updated.” Call me, Steve Worrall, your Marietta estate planning lawyer, at 770-425-6060 or email me at steve @ georgiaestateplan.com and let’s get your family protected and give you peace of mind for 2018 and beyond.
When the subject of inheritance is being discussed, people almost always ask this question to their Will and Trust lawyer in Cobb County Here’s what you need to know about how you might be taxed on an inheritance.
The IRS expects you to report every source of income. This leads many to believe that they will have to claim an inheritance when they file their annual returns. Good news! An inheritance is not counted as part of your income for tax purposes.
Capital Gains Tax
The capital gains tax kicks in any time a gain is achieved. So, if you buy a dilapidated house to renovate with plans to immediately sell it, the amount of money over the original purchase price would be subject to the capital gains tax.
Inherited assets that appreciated during the life of the benefactor would get a step-up basis. This means that the value of the inherited asset would be subject to capital gains tax from when you inherited them. Good news! You would not be responsible for the gains that took place during the life of the person who left them to you. The key here is to understand that if you do realize a gain in the future, you will be responsible for the capital gains tax from the moment you acquired the asset.
A spouse can transfer unlimited assets to their spouse tax-free. However, there is a federal estate tax that will be applicable to anyone else. Asset transfers that exceed $5.45 million are subject to the estate tax.
One positive I can report is that here in Georgia we do not have a state-specific tax.
So, there you go. You should now have a good idea about whether the money you plan to leave your loved ones will be taxed. The good news is that there are legal methods for reducing your tax burden if you are subject to them. We invite you to call our Cobb County Will and Trust attorneys at 770-425-6060 to schedule an appointment where we can help you create an estate tax plan that best meets your needs.
It’s Christmas time and as an East Cobb Wills Lawyer, I look for fun ways to relate legal concepts in popular media. The novelty Christmas song, “Grandma Got Run Over by a Reindeer,” written by Randy Brooks and first recorded by Elmo and Patsy in 1979, is about a grandmother who gets intoxicated on Christmas Eve from drinking too much eggnog at a family gathering. To complicate matters she has forgotten to take her medication and she ignores warnings from her family. As a result, she staggers outside into a snowstorm. On her way home, she is allegedly trampled by Santa Claus’s reindeer-pulled sleigh. At the next day’s Christmas “festivities,” instead of celebrating the holiday, “all the family’s dressed in black.” Grandpa acts as if nothing has happened, and is drinking beer, watching football and playing “cards with cousin Mel.” The song suggests that Santa, “a man who drives a sleigh and plays with elves,”is unfit to drive and that the listening public should be wary of him, as a menace to society.
Since I’m an Estate Planning lawyer, I can’t just leave it there. I wonder about Grandma’s estate. (Yes, I do that sort of thing.)
Imagine Grandma survived the attack but was still seriously injured. After the collision, she is unconscious and unresponsive. Her doctor declares her legally incompetent. What happens to Grandma and her stuff depends on what estate planning Grandma and Grandpa have put into place.
First, assume that, like two out of three of us, Grandma and Grandpa have NOT done proper estate planning. When Grandma is admitted to the hospital, since she does not have an Advance Directive for Health Care, she has no control over who will make health care decisions for her now that she can’t communicate her wishes. Under Georgia’s Medical Consent Law, the next of kin can consent if the patient is unable to do so. The spouse is the first option for a patient who is married. So it’s all up to Grandpa. Yep, he’ll get around to deciding that right after the next round of cards.
For another scenario, let’s assume Grandma makes it, but her care is getting expensive. She and Grandpa had maintained separate bank accounts all these years. Grandma’s pension is in her account and all of the household bills are in her name. Grandpa will have to go through a lengthy, public and costly court process to be appointed as Grandma’s guardian and conservator to access Grandma’s pension to pay hospital and household expenses. He will most likely have to post a bond to make sure he doesn’t mishandle Grandma’s money. This process will take several weeks and will cost several thousand dollars. Considering Grandpa’s greater interest in drinking beer and playing cards, it will probably be a hefty bond.
Now, let’s look several months down the road from the horrific attack. Sadly, Grandma does not make it, and finally, “all the family’s dressed in black.” So NOW what happens to Grandma’s property?
Sadly, Grandma did not have a Last Will and Testament. Are you surprised? Georgia’s laws of intestate succession provide the default or “do nothing” plan. It is a one-size fits all Will (sort of like Grandpa’s overalls) that says Grandma’s estate will be split between Grandpa and her unnamed children. Let’s assume Grandma and Grandpa had two children, Elmo and Patsy. Grandpa receives the same size share as each child (but not less than one third) and Elmo and Patsy will also receive one third each. Don’t worry about old Cousin Mel getting anything: before she would become an heir, Grandma’s spouse, children, and all grandchildren, parents and siblings would have had to have predeceased her before Mel, a cousin, receives anything. Okay, so maybe Mel will get the playing cards.
Just like the guardianship and conservatorship, this matter will be handled in the probate court, and is likewise a public, time-consuming, and costly process. Not the smartest of options, but not an unlikely result, considering this silly family.
Let’s look at a more controlled and alternative outcome to the tragic situation now. This time, because she was thinking ahead, Grandma had signed an Advance Directive for Health Care naming Sister Sally as her health care agent. Since Grandma is now unable to communicate her wishes, Sally can make her health care decisions for her. She can admit Grandma to the hospital and request, consent to treatment or withdraw treatment. (And, unlike Grandpa, Sister Sally won’t hesitate!)
this time Grandma also has a durable power of attorney and a revocable living trust, so when she became incapacitated, Sister Sally is able to immediately act on her behalf to handle her finances as her agent or “attorney in fact.” This works out better for Grandpa, too. Instead of having to file for guardianship and conservatorship over Grandma, he could keep his scheduled card games with the guys. Sally becomes the successor Trustee and gained access to Grandma’s money with minimal time and expense and it was all handled privately.
Grandma’s living trust was fully funded (meaning the title of all of her accounts and property were transferred to it), so when she ultimately passed on, her family did not have to go through the several months of delays and costs of a public probate process (several thousand dollars more), but instead was able to have immediate access to the money and property. Sally took a modest fee allotted by Grandma for her efforts as trustee and transferred funds to Grandpa as he needed them.
So the next Christmas, the goose was on the table, as was the pudding made of fig. As the blue and silver candle that matched the hair in Grandma’s wig flickered, everyone remembered Grandma fondly, as they all waited for the jury award in Grandma’s lawsuit against Santa.
And they all lived happily ever after.
(Adapted from a prior post co-written by Steve Worrall and Shelia Manely, originally posted here)
Irrevocable Trusts are an integral part of most asset protection planning strategies. They are used to protect property and assets from nursing homes and other predators, and, depending on your individual situation, can end up saving you thousands of dollars. East Cobb trusts lawyers have put together some of the basics to give you everything you need to know about Irrevocable Trusts.
Just as the name suggests, an Irrevocable Trust cannot be terminated once it is created, which is what sets it apart from a Revocable Trust. The reason it cannot be revoked is because of the many benefits afforded by the trust for protecting assets and shielding against taxes. Revocable Trusts are good for avoiding probate and allowing successor trustees to manage affairs if the grantor becomes incapacitated, while Irrevocable Trusts are mainly used for asset protection purposes.
A Living Trust
There are actually two types of Irrevocable Trusts – Living and Testamentary. A Living Trust comes into effect and is irrevocable as soon as it is initially funded, meaning the ownership of assets changes while the grantor is still alive and stays that way after the grantor passes away. A Testamentary trust becomes irrevocable when the grantor dies, meaning the terms of the trust cannot be changed after that point. Most Revocable Trusts become Irrevocable at the time of the grantor’s passing, while other Testamentary trusts are created through the Last Will and Testament.
Different Types of Irrevocable Trusts
As noted earlier, Irrevocable Trusts are designed to save money, either by reducing taxes or protecting assets. There are many different types of Irrevocable Trusts available depending on what situation you’re in and what goals you’d like to accomplish. Here are a few of the irrevocable trusts and their benefits:
- A Bypass Trust is used to significantly reduce estate taxes once the second spouse has passed away. The trust holds all the assets from the first spouse, meaning the surviving spouse does not actually own the assets. This reduces the amount of the estate for estate tax purposes.
- A QTIP Trust is used to delay or postpone the payment of estate taxes once the second spouse passes away.
- A Medicaid or Special Needs Trust holds ownership of a person’s assets in order to make them eligible for state and/or federal benefits, either when it is time to enter a nursing home or if the benefits are in danger of being lost due to an inheritance.
If you have questions about setting up an Irrevocable Living Trust, or if you’d like to have your current Irrevocable Living Trust reviewed by an experienced trust attorney, please give our East Cobb estate planning and asset protection planning law firm a call at 770-425-6060, or email us at email@example.com to set up a consultation.