What Documents are in an Estate Plan?

What Documents are in an Estate Plan?

Understanding how estate planning documents work is central to creating an estate plan for each individual’s unique situation. An estate planning attorney needs to know the details of your life, not because they’re nosy. It is because this is how they can create a plan tailored to protect you during your lifetime, plan for long-term care and distribute assets upon your death. A recent article, “Understanding estate planning documents” from Lake Country Record-Bee, explains in broad strokes what each estate plan needs to include.

The will nominates an executor to administer the decedent’s estate, including the distribution of specific gifts and other assets. Depending on your state of residence, the will must be witnessed by one or two people who have no interest in the outcome of your will. At death, the distribution of assets only applies to those in the estate and not to those who receive property transferred under a trust, through a designation of death beneficiary form or a joint tenancy title.

A trust controls and manages assets placed in the trust during life and after death. Assets held in a living trust are used to avoid conservatorships, should become incapacitated during life. Assets in trusts do not go through probate.

Assets transferred into a living trust must belong to the person to establishes the trust, known as the settlor. A married couple may establish a joint trust to receive community property, if they live in a community property state. Each spouse may choose to transfer his or her own separate property assets into a joint trust, or keep their separate property assets in separate trusts.

Trust assets are titled for ownership and control to the trustee. The trustee is a fiduciary, meaning they are the legal representative of the trust and administer the provisions of the trust as directed in the trust documents.

You should always have a successor trustee for a trust, who takes office when the last initial trustee resigns, becomes incapacitated, or dies. How and when the transfer to the successor trustee takes place is included in the trust documents. Some trusts include a specific method to fill a trustee vacancy, if no nominated successor trustee accepts the role.

Living trusts can be changed by the settlor. The incapacity or death of the settler makes a living trust an irrevocable trust. A joint trust, however, sometimes allows either settlor acting alone to amend the living trust. Your estate planning attorney will help you determine whether a joint trust makes sense for your family.

Powers of attorney (POA) allows a person (the principal) to authorize another person (the agent) to act as a representative over some or all of the principal’s own legal and financial affairs. The POA does not have any power over a trust; the trustee is in charge of the trust. A POA can be effective on signing or effective upon incapacity of the principal. POA forms do not always reflect specific individual wishes, so it’s best to have one created by an estate planning attorney.

The Advance Health Care Directive (AHCD) delegates authority to an agent to make decisions and act on the principal’s needs in health care. The AHCD must be created and be in place before incapacity occurs. An incapacitated person cannot sign legal documents.

Reference: Lake County Record-Bee (Feb. 18, 2023) “Understanding estate planning documents”

Beneficiary Battle over Presley Estate Reveals Possible Problems in Estate Planning

Beneficiary Battle over Presley Estate Reveals Possible Problems in Estate Planning

This is the situation facing the estate of Lisa Marie Presley, whose estate is being challenged by her mother, Priscilla Presley, as described in a recent article, “Presley beneficiary battle sets example of poor estate planning practices” from Insurance NewsNet. These situations are not uncommon, especially when there’s a lot of money involved. They serve as a teachable moment of things to avoid and things to absolutely insist upon in estate planning.

Lisa Marie’s estate is being challenged because of an amendment to the trust, which surfaced after she died. The amendment cut out two trustees and named Lisa Marie’s children as executors and trustees.

At stake is as much as $35 million from three life insurance policies, with at least $4 million needed to settle Lisa Marie’s debts, including $2.5 million owed to the IRS.

When this type of wealth is involved, it makes sense to have professional trustees hired, rather than appointing family members who may not have the skills needed to navigate family dynamics or manage significant assets.

A request to change a will by codicil or a trust by amendment happens fairly often. However, some estate planning attorneys reject their use and insist clients sign a new will or restate a trust to make sure their interests are protected. In the case of Lisa Marie, the amendment might be the result of someone trying to make changes without benefit of an estate planning attorney to make the change correctly.

The origins of the estate issues here may go back to Elvis’ estate plan. His estate was worth $5 million at the time of this death, $20 million if adjusted for inflation. His father was appointed as the executor and a trustee of the estate. His grandmother, father and Lisa Marie were beneficiaries of the trust. Lisa Marie was just nine when her famous father died, and her inheritance was held until she turned 25.

When his father died, Priscilla was named as one of three trustees. When his grandmother died, Lisa Marie was the only surviving beneficiary. She inherited the entire amount on her 25th birthday—worth about $100 million largely at the time because of Priscilla’s skilled management.

Terminating such a large trust and handing $100 million to a 25 year old is seen by many estate planning attorneys as a big mistake. Distribution at an older age or over the course of the beneficiary’s lifetime could have been a smarter move. Lisa Marie reportedly blew through $100 million as an adult and was millions of dollars in debt, despite the estate having plenty of cash because of two large life insurance policies.

In 1993, Lisa Marie established a trust naming her mother and former business manager as trustees. The amendment in question seems to have been written in 2016, removing Priscilla and business manager Siegel as trustees, appointing Lisa Marie’s daughter and son as trustees, and naming her son and her fourteen year old twin sons as beneficiaries.

Priscilla’s attorneys say they had no prior knowledge of the change. Certain changes in estate plans require written notification of people with interest in the estate, which did not occur. They are also challenging the amendment’s authenticity, saying it was neither witnessed nor notarized. Priscilla’s name is misspelled and Lisa Marie’s signature is not consistent with other signatures of hers.

The estate is being contested, with a preliminary hearing on the matter scheduled for April 13.

Any changes to an estate plan, particularly those involving changes to the will, trusts or beneficiaries, should be done with the help of an experienced estate planning attorney. When large changes are made, or large assets are involved, a simple codicil or amendment could lead to complicated problems.

Reference: Insurance NewsNet (Feb. 17, 2023) “Presley beneficiary battle sets example of poor estate planning practices”

Read more about the article What are Some Best Practices for a Trustee?

What are Some Best Practices for a Trustee?

Forbes’ recent article entitled “How To Be An Effective Trustee” provides some great best practices for those asked to be a trustee.

  1. Make a team. No one person can have all the necessary skills and experience to be an effective trustee. Work with an experienced estate planning attorney, an investment advisor and a tax accountant knowledgeable about the taxation of trusts. It’s a good practice for the trustee to have regular meetings with the team of advisors, both as a team and individually.
  2. Understand the key trust terms. Understand what the trust document says and what the key terms mean. When you are named as trustee, a best practice is to read the entire trust document and go through the document with an attorney and have them explain the key terms. Some of these key terms may involve the following:
  • Distribution standards
  • Special provisions for investing, particularly direction to sell or not to sell certain assets
  • Provisions the trustee should act upon, like the power to appoint a successor; and
  • Knowing whether the beneficiary’s age will trigger distributions or any other actions.
  1. Work productively with beneficiaries. Dealing with beneficiaries is frequently the most challenging part of being a trustee. There can be differences of opinion over distribution amounts, investment strategy, or other matters relating to the management of the trust which can lead to disagreement. To avoid potential issues with beneficiaries and facilitate a productive relationship, trustees should try to practice following:
  • Communication
  • Transparency
  • Education
  • Clear Distributions; and
  • Providing Required Information.
  1. Documentation is Crucial. Although trustees can’t guarantee perfect results, they must act with care, skill and impartiality. They must have rational reasons for their decisions and documenting them is critical because it substantiates the trustee’s decision-making. Some examples of decisions that should be thoroughly documented include:
  • Distribution Decisions
  • Decisions That Set Investment Policy
  • Initiation or Termination of Investments and Hiring and Firing Investment Managers/Funds
  • Principal and Income Allocations;
  • Verbal Communications with Beneficiaries; And
  • Decisions to Hire Experts or Agents, like an attorney or an accountant.

Reference: Forbes (May 31, 2022) “How To Be An Effective Trustee”

Do I Need a Life Insurance Trust?

Do I Need a Life Insurance Trust?

Irrevocable Life Insurance Trusts have three components: a grantor, the person who creates a trust, a trustee, the manager of the trust and a beneficiary or beneficiaries, explains a recent article titled “What is an Irrevocable Life Insurance Trust?” from The Edwardsville Intelligencer.

In an ILIT, the trustee purchases the policy, and the irrevocable trust becomes the owner. When insurance benefits are paid on the death of the grantor, the trustee collects the funds, pays any estate taxes due and any outstanding debts, like legal fees and probate costs, then distributes the rest to beneficiaries.

The biggest reason for people to consider an ILIT is to help lessen estate taxes. In the last few years, the federal estate and gift tax exemption has been set at historically high levels, and most people don’t need to worry about that on a federal level. However, state estate taxes still need to be addressed, and the federal estate tax level is set to drop dramatically in 2026.

There are other reasons for an ILIT:

If a life insurance beneficiary is incapacitated, the ILIT can prevent the court system from controlling proceeds.

Proceeds from the ILIT can provide cash to pay expenses, including estate taxes and any other debts.

The ILIT can provide income for the spouse without the funds being included in the spouse’s estate.

The ILIT can provide protection for heirs. Depending upon the state where you live, proceeds from life insurance payouts may or may not have protection from creditors. Speak with your estate planning attorney to learn if this applies to you.

Ability to include a “Spendthrift Provision.” If an heir or heirs has trouble managing money or is prone to making bad decisions, financial and otherwise, the ILIT trust can contain a spendthrift provision to pay beneficiaries monthly, instead of providing them with a lump-sum payout.

However, the ILIT isn’t for everyone. There are some downsides to consider.

The ILIT is irrevocable, and is difficult, if not impossible, to make changes to it, with the exception of changing the trustee. Once a policy is placed in an ILIT, you give up any rights to the policy. You can’t reassign it to a different trust or any other legal entity.

ILITs are complex and nuanced legal vehicles requiring the help of an estate planning attorney who knows their way around trusts. This has been a very general overview of a topic with many moving parts to it. Discuss whether an ILIT will be useful for your estate plan with an experienced estate planning attorney.

Reference: The Edwardsville Intelligencer (Jan. 31, 2023) “What is an Irrevocable Life Insurance Trust?”

What Is Inheritance Theft?

What Is Inheritance Theft?

Inheritance theft is sometimes a very real issue for those who inherit money, property, or other assets. Inheritance theft laws exist to protect heirs and beneficiaries. If you’re going to receive an inheritance or have received one that was stolen from you, it’s important to know your legal rights and how to get those assets back.

Yahoo’s recent article entitled “Someone Stole My Inheritance. What Are My Options?” says inheritance theft can take different forms, and some are more obvious than others. Some common examples of inheritance theft or inheritance hijacking include:

  • An executor of a will who steals or attempts to conceal assets from the estate inventory
  • A trustee who diverts assets from a trust for their own use or benefit
  • Executors who charge excessive fees for their services
  • Abuse of power of attorney status
  • Use of coercion or undue influence to force a will-maker or trust grantor to change the terms of their will or trust; and
  • Fraud or forgery related to the will or trust document or the destruction of the documents.

Inheritance theft can also occur on a more personal level. Perhaps your sister and you share caregiving duties for your aging mother. Your sister has access to your mother’s bank accounts and—without your knowledge—takes out a large sum while your mother is still living. Your mother then names you as the executor of her will. When she dies, you create an inventory of her assets, as required. While doing so, you discover the missing funds from her bank accounts. If you and your sister were supposed to have inherited those assets jointly, this could be a violation of state inheritance theft laws.

People who commit inheritance theft may be subject to both criminal and civil penalties. A caregiver who steals money from someone’s bank accounts or coerces them into signing over other assets could also be charged with a felony or misdemeanor crime.

The injured heirs or beneficiaries may also opt to pursue a civil claim against someone they believe has stolen their inheritance.

Reference: Yahoo (Jan. 18, 2023) “Someone Stole My Inheritance. What Are My Options?”

Who Gets Graceland after Lisa Marie Presley‘s Death?

Who Gets Graceland after Lisa Marie Presley‘s Death?

The daughter of Elvis and Priscilla Presley, died on January 12 at 54 after suffering a cardiac arrest at her home in Calabasas, California. She will be buried near her late father and son (Ben Keogh) at Graceland, reports NME’s recent article entitled “Lisa Marie Presley’s children to inherit Graceland estate.”

According to People, Lisa Marie’s three daughters – actor Riley Keough, 33, and twins Harper and Finley Lockwood, 14 – will inherit Graceland in Memphis, Tennessee.

She was the sole heir to her father’s estate, which she assumed in 1980 after the Presley’s death in 1977. She owned Elvis’ former home, including his Graceland mansion and its surrounding 13 acres.

The estate was passed to Lisa Marie in trust when she was just nine. That trust officially dissolved on her 25th birthday in 1993, giving her full ownership of Graceland.

Graceland was turned into a public museum in tribute to Elvis in 1982. About 650,000 people visit the estate every year. The property is estimated to be worth $500 million.

Lisa Marie vowed to keep Graceland in the family.

“Graceland was given to me and will always be mine,” she said in a 2013 interview. “And then passed to my children. It will never be sold.”

The family has requested that fans donate to The Elvis Presley Charitable Foundation, instead of giving flowers.

With the news of Lisa Marie’s passing, tributes poured in from the likes of her ex-husband Nicolas Cage, John Travolta, Elvis star Austin Butler and the Michael Jackson estate.

Lisa Marie Presley opened up about bereavement in a 2022 essay for People, writing that “grief does not stop or go away in any sense, a year, or years after the loss.” She lost her son Ben to suicide in 2020.

She added: “Grief is something you will have to carry with you for the rest of your life, in spite of what certain people or our culture wants us to believe.”

Reference: NME (Jan. 17, 2023) “Lisa Marie Presley’s children to inherit Graceland estate”

Can I Protect My Family after Death?

Can I Protect My Family after Death?

Estate planning involves a close look at personal and financial goals while you are living and after you have died, as explained in a recent article titled “Professional Advice: Secure your future with estate planning” from Northwest Indiana Business Magazine. Having a comprehensive estate plan ensures that your wishes will be carried out and loved ones protected.

Your last will and testament identifies the people who should receive an inheritance—heirs—who will manage your estate—executor—and who will take care of your minor children—guardian. Without a valid will, the state will rely on its own laws to distribute assets and assign a guardian to minor children. The state laws may not follow your wishes. However, there won’t be anything your family can do if you didn’t prepare a will.

Assets with beneficiary designations can be passed to heirs without going through probate. Certain assets, like life insurance policies and retirement accounts, allow a primary and secondary beneficiary to be named. These assets can be transferred to the intended beneficiaries swiftly and efficiently.

Many people use trusts to pass assets for a variety of reasons. For example, a trust can be created for a family member with special needs, protecting their eligibility to receive government benefits. Depending on the type of trust you create, you might be able to eliminate estate taxes. Certain trusts are also useful in protecting assets from creditors and lawsuits, and ensure that assets are distributed according to your wishes.

Revocable living trusts provide protection in case of incapacity, avoid probate and ancillary probate and may provide asset protection for beneficiaries. If you are the creator of a trust—grantor—you will need to appoint a successor trustee to manage the trust if you are the original trustee and become incapacitated. Upon death, a revocable trust usually becomes irrevocable. Assets placed in the trust avoid probate, the court proceeding used to settle an estate, which can be both time-consuming and costly.

A Power of Attorney allows you to name a person who will handle your financial affairs and protect assets in the event of incapacity. That person—your agent—may pay bills, sell assets and work with an elder law estate planning attorney on Medicaid planning. The POA should be customized to your personal situation. you may give the agent broad or narrow powers.

Everyone should also have a Health Care Proxy, which gives the person named the legal right to make health care decisions on your behalf if you are unable to. You’ll also want to have a HIPAA Release Form (Health Insurance Portability and Accountability Act), so your agent can speak with all health care providers, access medical records and speak with the health insurance company on your behalf.

A Living Will is the document used to convey your wishes regarding end-of-life care if you are unable to do so yourself. It is certainly not pleasant to contemplate. However, it should be thought of as a kindness to your loved ones. Without knowing your wishes, they may be forced to make a decision and will never know if it was what you wanted. A Living Will also avoids conflicts between health care providers and family members and makes a stressful time a little less so.

Having a comprehensive estate plan provides protection for the individual and their family members. It avoids costly and stressful problems arising from the complex events accompanying illness and death. Every three to five years (or when life or financial circumstances warrant), meet with an estate planning attorney to keep your estate plan on track.

Reference: Northwest Indiana Business Magazine (Dec. 27, 2022) “Professional Advice: Secure your future with estate planning”

How Does a Trust Work?

How Does a Trust Work?

You’ve worked hard to accumulate financial assets. You’ll need them to support your retirement. However, what if you also want to pass them on to loved ones? Trusts are used to pass assets to the next generation and have many benefits, says a recent article titled “Passing assets through a trust—What to know” from the Daily Bulldog.

“Funded” trusts don’t go through probate, which can be time-consuming, costly, and public. Your last will and testament becomes a public document when it is filed in the courthouse. Anyone can see it, from people wanting to sell your home to thieves looking for victims. Trust documents are not public, so no one outside of the grantor and the trustee knows what is in the trust and when distributions will be made. A trust also gives you the ability to be very specific about who will inherit assets in the trust, and when.

An estate planning attorney will help establish trusts, ensuring they are compliant with state law. There are three key questions to address during the trust creation process.

Who will serve as a trustee? There are several key roles in trusts. The person who creates the trust is the grantor of the trust. They name the trustee—the person or company charged with managing the trust’s assets and carrying out the instructions in the trust. You might choose a loved one. However, if they don’t have the knowledge or experience to manage the responsibilities, you could also name a corporate fiduciary, such as a bank or trust company. These entities charge for their services and usually require a minimum.

When will distributions be made? As the grantor, you get to decide when assets will be distributed and the amount of the distribution. You might want to keep the assets in the trust until the beneficiary reaches legal age. You could also structure the trust to make distributions at specific ages, i.e., at 30, 35 and 40. The trust could even hold the assets for the lifetime of the beneficiary and only distribute earned income. A large part of this decision has to do with how responsible you feel the beneficiaries will be with their inheritance.

What is the purpose of the trust? The grantor also gets to decide how trust assets should be used. The trust could designate broad categories, such as health, education, maintenance and support. The trust can be structured so the beneficiary needs to ask the trustee for a certain amount of assets. Other options are to structure the trust to provide mandatory income, once or twice a year, or tie distributions to incentives, such as finishing a college degree or purchasing a first home.

An estate planning attorney will explain the different types of trusts and which one is best for your unique situation. There are many different types of trusts. You’ll want to be sure to choose the right one to protect yourself and your loved ones.

Reference: Daily Bulldog (Dec. 24, 202) “Passing assets through a trust—What to know”

Can Executor Take the Money and Run?
Living trust and estate planning form on a desk.

Can Executor Take the Money and Run?

What if your executor or trustee decides to run off to the Bahamas with all your assets, leaving heirs with nothing? Ohio Farmer’s recent article entitled “What if trustee runs off with assets?” says that safeguards should be in place to protect the heirs of an estate.

The most common way to protect against this possibility is a fiduciary bond. An executor, trustee, or guardian would get a bond early in a probate case and file it with the court. The bond would remain in place while the fiduciary is serving his or her role. If the fiduciary absconds with estate assets, the bond is there to help the beneficiaries.

This expense would be covered by the fiduciary, who would need to find a bond company willing to issue it. The bond amount is connected to the value of personal property, such as financial accounts, vehicles and personal effects.

Do you need a bond to cover the value of land? No. The primary difference is that land can’t be picked up easily and moved, making a bond unnecessary. It’s also very hard to transfer land without extensive safeguards. In some cases, court permission is required for a transfer. To sell a farm or ranch, a title company might raise suspicion. Real estate-related actions are also often public record. In some cases, a court action can correct issues or order damages.

It’s possible to waive the requirement of a bond. That’s a default setting for bonds with estates, trusts, or guardianships. Most estate planning documents waive the bond requirement, because family members often serve as fiduciaries.

State law may also describe several situations where a bond isn’t required. However, if a party motions the court, and the judge thinks there’s good cause for a bond, one can be required for a fiduciary.

While a bond can provide some important protections for heirs, the likelihood of a fiduciary running off with assets is low. As a result, most administrations view the bond as an unnecessary step and expense.

However, if a family is concerned about the trustworthiness of a fiduciary, the bond requirement should be reinstated.

If an administration is pending, the family can petition the court to require a bond. Consult with an experienced estate planning attorney to determine the role of bonds for your estate plan.

Reference: Ohio Farmer (Nov. 22, 2022) “What if trustee runs off with assets?”

Should I Need a Trust in My Estate Plan?

Should I Need a Trust in My Estate Plan?

Fed Week’s recent article entitled “Considerations for Including a Trust in Your Estate Plan” describes what a trust can offer. This includes the following:

  • Protection against possible incompetency. To protect yourself, you can create a trust and move your assets into it. You can be the trustee, so you’ll control the assets and enjoy the income.
  • Probate avoidance. Assets held in trust also avoid probate. In the documents, you can state how the trust assets will be distributed at your death.
  • Protection for your heirs. After your death, a trustee can keep trust assets from being squandered or lost in a divorce.

If your heirs are young, you can set up a trust to stay in effect until they are older and can handle their own finances. Another option is to keep the trust in effect for the lives of the beneficiaries.

A trust can be revocable or irrevocable. A revocable trust must be created during your lifetime. If you change your mind, you can revoke the trust and reclaim the assets as your own.

A revocable trust can offer incapacity protection and probate avoidance but not tax reduction.

An irrevocable trust can be created while you’re alive or at your death. A revocable trust may become irrevocable at your death.

Assets transferred into an irrevocable trust during your lifetime will be beyond the reach of creditors and divorce settlements. The same is true of assets going into an irrevocable trust at your death.

Your family members can be the beneficiaries of an irrevocable trust, while a trustee or co-trustees you’ve named will be responsible for distributing funds to those trust beneficiaries.

The trustee will be responsible for protecting assets.

Reference:  Fed Week (Oct. 5, 2022) “Considerations for Including a Trust in Your Estate Plan”