Estate Planning Attorney – Page 2

Including a Trust as part of your estate plan is a smart decision. It allows you to avoid probate, maintain privacy, and distribute your assets to your loved ones while also providing them with a lifetime of asset protection, if you choose it for them. But, here’s the thing you might not know, and is critically important to remember: simply creating a Trust is not enough. For your Trust to work, it has to be funded properly and may need to be updated over time.

Funding your Trust means transferring ownership of your assets from your own name into the name of your Trust. This can include bank accounts, investments, real estate, and other valuable possessions.

By funding your trust properly, you ensure your assets are managed according to the terms of your Trust and will be distributed according to your wishes when you die or if you become incapacitated.

But, if you fail to fund your Trust, it becomes nothing more than an empty vessel. Your assets will not be protected or distributed as intended, at least partially defeating the purpose of creating a Trust in the first place! While your assets can still get into your trust and be governed by your Trust after your death, that means that your family still goes to court to get your assets there, and that is a costly endeavor.

To make sure your Trust works for you, avoid these funding fiascos and work with an attorney who will ensure that everything that needs to get into your Trust does.

Forgetting to Update Your Account Beneficiaries

Many people mistakenly believe that a Will or Trust alone is enough to dictate how their financial accounts should be distributed after they die. However, this isn’t the case. Without proper beneficiary designations on your accounts, your wishes may not be honored and your assets could end up in the wrong hands.

Remember, the beneficiaries you designate on your accounts supersede any instructions in your Will or Trust, so this step is vitally important.

Take a moment to review your various accounts, such as bank accounts, retirement plans, and life insurance policies. Ensure that each account has your Trust named as your designated beneficiary, unless you’ve made different plans for that specific account.

When you are working with a lawyer, make sure your lawyer has a plan for each one of your beneficiary-designated assets, communicates that plan to you, and that the two of you decide who will handle updating your beneficiary designations. Then, make sure you review your beneficiary designations annually. In our office, we support our clients to do all of this with well-documented asset inventories, and a regular review process built into all of our plans.

Your Attorney Didn’t Move Your Home Into Your Trust

For many of us, our home is our most important and valuable asset. But if your attorney doesn’t deed your home into your Trust, your home won’t be included under the terms of your Trust if you become incapacitated or pass away.

That means your home could end up going through the long and expensive probate court process in order to be managed during an illness or passed on to your loved ones after you die. If you own a $300,000 home, that means your family could lose up to $15,000 or more just to transfer your home to your trust and then distribute your home pursuant to the terms of the trust – and that’s not including any other assets that would have to go through probate.

A knowledgeable estate planning attorney shouldn’t miss this step, but it happens. And if you’re using a DIY service online to create a Trust without the help of any attorney at all, it’s bound to happen!

That’s why it’s so important to work with a lawyer who takes the time to make sure every asset you own is in your Trust.

Not Reviewing Your Plan and Accounts Every Three Years

You might wonder how not reviewing your estate plan every few years (or anytime there’s a major life change like a marriage, divorce, or addition of a child) could really make your plan worthless. Well, the good news is that failing to review your plan is unlikely to completely eliminate the benefits it provides you because an estate plan is made up of a number of moving parts, not just a Will or a Trust.

But, failing to keep your financial assets up-to-date and aligned with your estate plan can result in huge issues for you and your family and can even make the Trust you invested in worth little more than the paper it’s printed on!

That’s because your Trust can’t control any assets that don’t have the Trust listed as the owner or beneficiary. By reviewing your accounts every three years, you can help catch any accounts that don’t have your Trust listed in this way.

For example, it’s very common for clients to open a new bank account and forget to open the account in the name of their Trust or add their Trust as a beneficiary.

Thankfully, by comparing my clients’ financial accounts to their estate plan at least every three years (or when there’s a major life change), I’m able to catch simple oversights like this that could cause their assets to be completely left out of their Trust.

Make Sure All of Your Assets Are Included In Your Plan with Help From Us

Getting your legal documents in place is an important step, but it’s equally important to know that the documents themselves are not magic solutions (as magical as they may seem!). Merely creating a Trust or naming beneficiaries on your accounts does not guarantee that your wishes will be carried out unless all of the pieces of your plan are coordinated to work together.

That’s why I work closely with my clients to not only create documents but to create a comprehensive plan that accounts for all of your assets and how each one needs to be titled to make sure your plan works for you the way you intended.

Plus, I offer my clients a free review of their plans and financial accounts every three years to ensure that their plans accurately reflect their lives and their wishes for their assets and loved ones.

If you want to know more about my process for funding your Trust and making sure nothing is ever left out of your plan, schedule a free 15-minute discovery call. I can’t wait to hear from you.

This article is a service of August Law, a Personal Family Lawyer® Firm. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a LIfe & Legacy Planning Session, during which you will get more financially organized than you’ve ever been before and make all the best choices for the people you love.

The content is sourced from Personal Family Lawyer® for use by Personal Family Lawyer® firms, a source believed to be providing accurate information. This material was created for educational and informational purposes only and is not intended as ERISA, tax, legal, or investment advice. If you are seeking legal advice specific to your needs, such advice services must be obtained on your own separate from this educational material.

Wills have a reputation as the number one estate planning tool, in small part thanks to Hollywood’s dramatic “reading of the Will” scenes (which rarely happens in real life) to characters plotting how best to defraud their billionaire uncle’s Will in order to inherit his lavish estate.

Although Wills are a key part of your estate plan, relying on a Will alone won’t solve your estate planning needs. Instead, using just a Will to plan your final wishes is likely to leave your loved ones with an expensive mess that won’t distribute your assets in the way you intended.

What’s more, a Will alone won’t ensure that you’re taken care of in the event of incapacity, and contrary to what you might think, relying on only a Will actually guarantees that your family will need to go to court when you die.

If you don’t want to leave your family with a mess if something happens to you, it’s important to know how a Will works and when it can be used to benefit you and your family.

What Exactly Is a Will and How Does it Work?

A Will is a written document that directs how the creator of the Will wants their possessions disposed of after their death. The creator of the Will is called the testator or testatrix. In your Will you can name someone you trust to manage the distribution of your assets, called your personal representative or executor. You can also direct what you want to have happen to your property, what charitable gifts you want to make, and who will receive them.

A Will can be a complex document or a very simple document. With that said, a Will isn’t a legally binding document unless it’s executed according to the laws of the state where you reside. In general, you need to sign your will in front of a witness, and sometimes a notary. Every state has different laws for the creation of a Will, it’s important to consult with an experienced estate planning attorney (like me) to create your Will rather than trying to write your own.

A Will Requires Probate Court

One of the biggest estate planning myths I hear from clients is the belief that by having a Will, their loved ones won’t need to go to court after they die.

This is, sadly, the opposite of the truth.

If you use only a Will as your main method of estate planning, you actually guarantee that your loved ones will go to court after you die. A Will is required by law to go through the court system called probate before any of your assets can be distributed. In fact, a will is only effective within the probate court.

Once your Will is admitted to the court after your death, your personal representative or executor will be given official authority to move your assets under the court’s supervision. This ensures your property is distributed according to your wishes and that the court can intervene if there are any disputes over who gets what.

While court oversight can be helpful if there is any confusion or disagreement about your estate, the probate process is long and expensive. Depending on your state, the process can take about 6 months for small estates, or 12 – 18 months (sometimes even longer) for most estates.

Due to the length and complexity of the process, going through probate can easily cost your family tens of thousands of dollars. Some states even require that probate cost a certain percentage of your estate’s value.

In addition, because probate is a public court proceeding, your Will becomes part of the public record upon your death, allowing everyone to see the contents of your estate, who your beneficiaries are, and what they’ll receive. Unfortunately, scammers could use this information to try to take advantage of young or vulnerable beneficiaries who just inherited money from you.

A Will Does Not Apply to All of Your Assets or All of Your Needs

A Will actually only covers certain items of your property, including any property owned solely in your name and any property that doesn’t have a beneficiary designation. It does not cover property co-owned by you with others listed as joint tenants or owned as marital property, meaning you can only give away your share of any property you own with others, not the entire property.

Any assets that have a beneficiary designation, like retirement accounts or life insurance, are not controlled by your Will at all, but will be paid out to the person listed as your beneficiary on each account. Because of this, it’s especially important to make sure your account beneficiaries are up to date, and named in a way that will not result in unintended consequences.

In addition, a Will has no power until you die, so you can’t use it to give someone you trust the power to make decisions for you if you’re incapacitated due to illness or injury. Even if you named someone in your Will to manage your estate, or watch over your children, that person will have no authority to do so while you’re alive.

Don’t Just Get a Will, Get an Estate Plan

With all the issues that using a Will for estate planning can create, you might be wondering why a Will is even used at all. The thing is, a Will isn’t the one-and-done solution that most people are led to believe.

Instead, a Will should be used as a piece of your overall estate plan, not as the entire plan itself. And ideally, your Will shouldn’t even need to be used at all.

An estate plan isn’t just one or two documents – it’s a range of tools and coordinated planning that makes sure everything and everyone you love is taken care of.

By using better tools like a Trust instead of a Will as your main tool for estate planning, you can direct what happens to your property while avoiding probate court entirely (aside from very limited filings) and ensuring the people you trust can step in and manage your assets immediately if you become incapacitated because of an illness or injury. In addition, any assets you put in the name of your Trust can remain entirely private, meaning the court and the public will never know what you own or who will inherit it after you’re gone.

When using a Trust-based estate plan, you’ll still have a Will, but your Will should only need to serve as a safety net to make sure that any assets that are accidentally left out of your Trust at your death are added back into your Trust.

Even more important than both a Will and a Trust, is an inventory of your assets so your family knows what you have, where it is, and how to find it when you become incapacitated or die. Without an inventory of your assets, your family will be lost when something happens to you. A comprehensive inventory updated throughout your lifetime is a critical, and often overlooked, piece of an estate plan that is not “just a Will”.

Protect Your Family and Make a Plan

If you’re ready to see how having an estate plan for your family is different than having “just a Will,” contact us today. We’ll review an inventory of everything you have and everyone you love, and together look at what would happen to your possessions and loved ones when something does happen. Then, I’ll help you develop a plan to make sure your loved ones are taken care of when you can’t be there and that your plan works for you, and for them, exactly as you want it – at your budget and within your desires. Most importantly, I don’t just create documents – I guide you and your family through every step of the process, now and at the time of your passing.

To get clear on what you really do need for yourself and the people you love, schedule your complimentary 15-minute call today.

This article is a service of August Law, a Personal Family Lawyer® Firm. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a Family Wealth Planning Session™, during which you will get more financially organized than you’ve ever been before and make all the best choices for the people you love.

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