There are many misconceptions about the law in general and about estate planning in particular. There are also many opportunities to use the law to protect those we love, when it comes to helping families navigate life and the legal processes that happen after the death or disability of a loved one. The best option is to plan ahead, reports the article “I’m dead, now what? Myths about deaths in Georgia” from the Cherokee Tribune & Ledger-News. Here are the top four myths about what happens when someone dies.
Estate planning for blended families is like playing chess in three dimensions: even those who are very good at chess can struggle with so many moving parts in so many dimensions. Preparing an estate plan requires careful consideration of family dynamics, and those are multiplied in blended families. This is another reason why estate plans need to be tailored for each family’s circumstances, as described in the article “Blended families have unique considerations in estate planning” from The News Enterprise.
Hollywood director John Singleton didn’t do his family any favors by committing the most common mistake when it came to planning an estate: procrastination.
Forbes’ recent article, “The John Singleton Estate Teaches Why No One Should Procrastinate Updating Their Will” explains that after Singleton died in April at age 51 from a stroke, he only had an outdated will from 1993. Although he was unmarried when he died, he left behind at least five children and two other minor daughters, who may be his offspring. The family has already publicly disagreed about important issues like if he was to recover from the stroke, who should serve as his conservator. They even fought over his cause of his death, after he was brought to the hospital under mysterious circumstances.
Estate planning attorneys hear it all the time: “My children will have to figure it out,” “Everything will go to my spouse, right?” and “It’s just not a priority right now.” But then we read about famous people who don’t plan, and the family court battles that go on for years. Regular families also have this happen. We just don’t read about it.
Mark Twain was right. He passed away one day after the comet’s closest approach to earth. A month later, his last will and testament was admitted by a Connecticut probate court appointing three friends as executor trustees to administer his estate. According to the article “Who will advocate for your estate?” appearing in 83 degrees, his estate plan choices turned out to be a terrible mistake.
A family has set up their estate plan. Two sons are already in the farming business and are thriving. Their daughter will receive the proceeds from a second-to-die life insurance policy and their considerable savings. The amounts are not equal in amount, but they are an equitable inheritance, and it seems like the couple has done its homework.
However, asks an article in The Courier, “The will is done, you’re sitting pretty—but are you?”
There are some people who sign their will once in their life and never change it. They may have executed their estate plan late in life, or after they were diagnosed with a serious disease. However, even if your family life and finances are pretty basic, there are still changes in the law that you may need to incorporate into your estate plan. Some of the people that you named in your will could also have died or moved away.
That may be an idealistic portrayal, but there is some truth to it. It is no longer unusual for families to engage in estate litigation, according to The Northside Sun’s article “Do You Have a Will or a Trust? Why?” Many families who have estate plans incorporate trusts to ensure that their directions are followed.
It’s an emotionally charged decision. Parents who sit down with an estate planning attorney would much rather talk about their grandchildren and how much they are looking forward to retirement.
However, then the discussion turns to how they want to distribute their assets, as reported in the article “Why is it called a ‘No Contest’ clause?” from The Daily Sentinel, and a problem is revealed.
The parents share that there is a family member, an adult child, who has never been part of the family. Usually they have had a troubled past, pushed others in the family out of their lives and it’s heartbreaking for all concerned.
The discussion then moves to determining how to handle that individual with respect to their estate plan. “Do you want her to be part of your estate plan?” is the least judgmental question the attorney can ask. In many cases, the parents say yes and say they’ll keep trying to foster some kind of relationship, no matter how limited. In other cases, the answer is no.
In both cases, however, the concern is that the difficult child will fight with their siblings and take the battle to court. That’s one of the reasons to include a no contest clause.
As long as estate planning documents are prepared correctly and signed, they will survive a legal contest. However, putting in a no contest clause creates another barrier to an estate battle.
The no contest clause is intended to act as a strong deterrent for those individuals who believe they are entitled to more of the estate. It makes it clear that any challenges will result in a smaller portion of the estate, and possibly no inheritance at all, depending upon how it is written.
Both parents need to have a no contest provision included in their wills. The message is clear and consistent: these are the estate plans that we decided to create. Don’t try to change them.
For families with litigious family members or spouses who married into the family and feel that they are not being treated fairly, a no contest clause makes sense to protect the wishes of the parents.
Speak with an experienced estate planning attorney about how a no contest provision might work in your situation. If your family doesn’t need such a clause, count your blessings!
Reference: The Daily Sentinel (Aug. 10, 2019) “Why is it called a ‘No Contest’ clause?”
Probate can be avoided with proper estate planning, or certain assets can be placed outside of the probate process.
The Street’s recent article on this subject asks “What Is Probate and How Can You Avoid It?” The article looks at the probate process and tries to put it in real-life terms.
Probate is an estate planning process that works within a probate court with a probate judge presiding over the proceedings. Usually, surviving families and other interested parties initiate a probate process, to address issues relating to the deceased individual’s estate settlement. These include:
- The handling of the deceased’s valid will;
- Properly citing and categorizing the deceased’s assets;
- Appraising the deceased’s estate and property;
- Paying off any of the deceased’s existing debts; and
- Distributing the deceased’s property to those directed by the will (or, if there’s no will, the probate court will direct the distribution of estate assets, according to the laws of intestacy).
The executor handling the deceased’s estate will typically start the process. Here are the basic steps:
File a Petition. The estate’s executor will file a request for probate in the county where the deceased resided. The court will then assign a date to confirm the executor and, once that is done, the probate judge will officially open the probate case.
Notice. The executor must send a notice that the deceased’s estate is officially in probate to all applicable beneficiaries, heirs, debtors and creditors.
Inventory Assets. The executor will then collect, list and present a value for all of the deceased’s assets and supply this to the probate court.
Pay the Bills. The executor will need to pay all outstanding debts owed by the estate after receiving Court approval.
Complete Any Tax Returns. The estate may also have existing tax returns that need to be filed. An accountant can be hired by the estate to work on this, or the executor may choose to file the taxes on his or her own.
Pay the Heirs. The executor can now distribute the remainder of the estate to any heirs, according to the will’s instructions.
Close the Estate. Finally, the executor will file paperwork with the court and file to close the estate.
An experienced estate planning attorney licensed to practice in your state will be able to explain what strategies are used to avoid probate, how to remove certain assets from the process, or whether it needs to be avoided at all. In some cases, probate is swift, but often it is long and tiresome. A local estate planning attorney is your best resource.
Call us (228) 460-5243 or email us at email@example.com to find our how your probate attorney can help you.
Legal disclaimer: The information in this article is provided for information purposes only and should not be construed as legal advice. Your should not act or refrain from acting on the basis of any content included in this article or on our website (www.perklawgroup.com) without seeking legal or professional advice.
Reference: The Street (July 29, 2019) “What Is Probate and How Can You Avoid It?”