Minneapolis Estate Planning and Probate Lawyer Blog
Monday, November 24, 2014
Role of the Successor Trustee
When creating a trust, it is common practice that the person doing the estate planning will name themselves as trustee and will appoint a successor trustee to handle matters once they pass on. If you have been named successor trustee for a person that has died, it is important that you hire a wills, trusts and estates attorney to assist you in carrying out your duties. Although the attorney that originally created the estate plan would most likely be more familiar with the situation, you are not legally required to hire that same attorney. You can hire any attorney that you please in order to determine what your obligations are.
If the decedent had a will it is common that the successor trustee is also named as the executor. Although the role of executor is similar to that of trustee, there are technical differences. If there was a will, you should consult with an attorney to determine if a court probate process will be required to administer the estate. If all assets were titled in the trust prior to the person’s death, or passed by beneficiary designation, such as in the case of life insurance and retirement plan assets (such as 401ks, IRAs, etc.), then a court probate may not be needed. However, if there were accounts or real estate in the person’s name alone that were not covered by the trust, a court probate may be necessary.
During the probate process, all of the deceased person’s assets must be collected and accounted for. This includes all bank accounts, stocks, bonds, mutual funds, investment accounts, retirement assets, life insurance, cars, personal belongings and real estate. All of these assets should be valued and listed on one or more inventories. Depending upon the value of the assets, an estate tax return may be needed. You should be aware of any final expenses, the person’s final income tax returns, and any creditors. Although this process is lengthy, once all of the appropriate steps are taken, the assets will be distributed and the estate will come to a close.
If you have been named a successor trustee, an experienced estate planning attorney can help you through this process and make sure you carry out your legal duties as required. Contact us for a consultation today.
Monday, November 17, 2014
What To Do After Death, Part I
Minneapolis Probate Lawyer: What is Probate?
I often explain to people that I am a "probate lawyer" only to be met with a blank stare. Occasionally, the statement "I don't know what that means" will accompany the blank stare. So, I decided to draft a series of posts under the "Probate" heading that will offer some general explanations and definitions. Hopefully, this will offer some guidance to those suffering a loss who aren't sure of their next steps.
I manage a lot of unique cases and have witnessed many probate outcomes – both fair and unfair. I’ve had the opportunity to be placed in a position where I can now see the little bumps in the road before they happen. Before I continue onto my point about air tight wills in Part II of this series, let me run you through a few terms.
“Probate” is simply the process of administering the estate of a deceased person, looking at all claims to money or other assets, administering monies and items fairly and as close to the wishes of the deceased as they are known through the documentation. The process can also be called "estate administration" as we are working to administer a person's estate (i.e. stuff) after death according to his or her wishes.
During the probate administration process, what is known as a “probate court” will validate and test the will (I will cover this in Part II). Once this is completed, the court will then interpret the wishes of the deceased person and appoint the executor of the estate. Post appointment of the executor, the probate will serve the purpose of adjudicating disputes to the will and determining the value of any claims made to the estate by outside parties.
Whenever you have outside interest in a will, you will have many probate disputes. Your lawyer should anticipate this and work to create the most reliable will to protect your family as possible. In Part II we will discuss measures that can be taken to protect your family. As a Minnesota probate lawyer who has drafted hundreds of wills, and handled numerous probates, for many different types of family my firm is well prepared to help you with this.
Monday, November 10, 2014
How to Choose an Executor
A Minneapolis Probate Lawyer Discusses Selecting An Executor Post Mortem
The death of a loved one is a difficult experience no matter the circumstances. It can be especially difficult when a person dies without a will. If a person dies without a will and there are assets that need to be distributed, the estate will be subject to the process of administration instead of probate proceedings.
In this case, the decedent’s heirs can select someone to manage the estate, called an administrator instead of executor. State law will provide who has priority to be appointed as the administrator. Most states’ laws provide that a spouse will have priority and in the event that there is no spouse, the adult children are next in line to serve. However, those that have priority can decline to serve, and the heirs can sign appropriate affidavits or other pleadings to be filed with the court that nominate someone else as the administrator. Once the judge appoints the nominated person they will then have the authority to act and begin estate administration.
In certain circumstances, it may be necessary to change the initially appointed administrator during the administration process. Whether this is advisable depends on many factors. First, the initial administrator will have started the process and will be familiar with what remains to be done. The new administrator will likely be behind in many aspects of the case and may have to review what the prior administrator did. This can cause expenses and delays. Also, it is possible that the attorney representing the initial administrator may not be able to ethically represent the new one, again causing increased expenses and delays. However, if the first administrator is not doing his/her job, the heirs can petition to remove the individual and appoint a new one.
If you are currently involved in a situation where an estate needs to be administered, it is recommended that you speak with an estate planning attorney in your state.
Monday, October 27, 2014
Financing and Growing Your Small Business Through Crowdfunding
What is crowdfunding? Part social networking and part capital accumulation, crowdfunding is simply the collective cooperation, attention and trust by people who network and pool their financial resources together to support efforts initiated by others.
Inspired by crowdsourcing, this innovative approach to raising capital has long been used to solicit donations or support political causes. This method has also been successfully implemented to raise capital for many different types of projects, including art, fashion, music and film.
Entrepreneurs can also tap the internet as a way to raise financing from a broad base of investors without turning to venture capitalists. With crowdfunding, you can raise small amounts of capital from many different sources, while retaining control over your business venture. Crowdfunding for business ventures, however, is not without its risks, and likely requires advice of an attorney.
In the traditional crowdfunding model, donations are pledged over the internet to fund a particular project or cause. The contributors are supporting the project, but receive no ownership interest in return for their monetary donation. This type of arrangement can exist with non-profit ventures and political campaigns, as well as start-up businesses. The person or entity soliciting the funding utilizes existing social networks to leverage the crowd and raise contributions in exchange for a reward, which is typically directly related to the project being funded, such as a credit at the end of a movie. With this type of arrangement, the contributor does not receive any ownership interest in the venture in exchange for the donation.
However, when for-profit companies solicit funds from a large number of individuals to raise capital in exchange for shares of ownership in the company, care must be taken to ensure the arrangement does not run afoul of federal and state securities laws.
Various companies and websites have popped up to assist entrepreneurs in raising capital through crowdfunding. Some operate on a flat fee, others charge a percentage of funds raised. Keep in mind that any securities in a company sold to the public at large must be registered with regulatory authorities, unless they qualify for a specific exemption from the registration requirement. Selling shares of ownership to low-net-worth individuals (“unaccredited investors”) can trigger numerous registration and disclosure obligations. Additionally, state laws may also affect the transaction. As the number of investors and states involved increases, so do the cost and complexity of obtaining this type of capital financing. The various rules can be difficult to navigate, and missteps can result in significant penalties.
Monday, October 13, 2014
Family Foundations: What, Why, and How
Families with significant net worth who have a tradition of philanthropy often consider establishing a charitable foundation as part of their estate plans. While there are a number of advantages to using family foundations as a philanthropic vehicle, families need to seek guidance from estate planning and tax professionals to ensure it is the best option for achieving their objectives.
According to The Foundation Center, there are over 35,000 family foundations in the US, responsible for more than $20 billion in gifts per year. While some foundations have tens of millions in assets, more than half report holdings totaling less than $1 million.
Minimizing various tax burdens is one benefit of creating a family foundation. However, if tax issues are your primary concern, then a different asset management and distribution vehicle will probably better suit your needs. While it is true that family foundations offer certain tax advantages—both in terms of current income tax obligations and future estate tax burdens—family foundations are also under many legal and regulatory obligations. These ongoing obligations mean that your family should choose to build a family foundation only if ongoing philanthropic giving is an enduring family goal.
Non-tax-related benefits of a family foundation include the following:
- Managing the foundation may provide employment for one or more family members
- A family foundation allows founders to involve family members in family wealth management, especially those who lack interest in the family business
- The foundation founder can maintain influence over recipients of charitable giving for generations to come
- A family foundation makes an excellent repository for all charitable giving requests. A formal process can be established to ensure grant applicants are not arbitrary.
- A family foundation can serve as a formal manifestation of a family’s philanthropic culture.
Types of Family Foundations
There are many different types of family foundations, each with certain advantages, disadvantages, and tax and regulatory obligations. The main types of family foundations include:
- Private non-operating family foundations which receive charitable donations from the family, invests those funds and makes gifts to other charitable organizations or individuals.
- Private operating family foundations which actively engage in one or more philanthropic activities, as opposed to making donations to other foundations that perform active charitable work.
- Supporting organizations which are designed to provide financial support to one or more specific public charities
- Publicly supported charities can be seeded with family philanthropic funds but then also take donations from the public. Publicly supported charities must meet specific Internal Revenue Service requirements to maintain their status as publicly supported charities.
Issues to Consider when Establishing a Family Foundation
- How much money do you plan to give to the foundation at its inception?
- Do you anticipate volunteer help from your family to run the foundation, or will the foundation need to pay one or more salaries?
- Does your family wish to support one or more specific charities, or do you want to fund a foundation which can ultimately choose among other charities in specific fields of philanthropic work?
- Does your family want to actively engage in philanthropic work or make gifts to other organizations that are already engaged in such work?
- Does the foundation founder prefer to exert strict control over gifts the foundation makes, or only to generally specify the types of philanthropic work he or she wishes the foundation to support?
Once you and your family have carefully thought through these considerations, you should consult with an estate planning attorney and other tax advisors to determine which type of family foundation most effectively meets your family’s giving objectives.
Monday, September 29, 2014
Stepparent Adoptions in Minnesota
Stepparent adoption is the most common form of adoption in the United States. Once the adoption is finalized, the stepparent assumes full financial and legal responsibility for his or her spouse’s child and the non-custodial parent’s rights and responsibilities are terminated. Read more . . .
Wednesday, September 17, 2014
A Simple Will Is Not Enough
Minneapolis Estate Planning and Probate Lawyer Explains the Minimum Documents You Need to Protect Your Family
I sometimes hear comments like "I just need a simple will" or "Why can't I just get my will on the internet"? I want to be clear that a basic last will and testament cannot accomplish every goal of estate planning; in fact, it often cannot even accomplish the most common goals. This fact often surprises people who are going through the estate planning process for the first time. Or worse, the family left behind finds this out when they attempt to settle a loved ones estate. In addition to a last will and testament, there are other important planning tools which are necessary to ensure your estate planning wishes are honored.
Do you have a pension plan, 401(k), life insurance, a bank account with a pay-on-death directive, or investments in transfer-on-death (TOD) form?
When you established each of these accounts, you designated at least one beneficiary of the account in the event of your death. You cannot use your will to change or override the beneficiary designations of such accounts. Instead, you must change them directly with the bank or company that holds the account. It is crucial that you update these as life changes.
Special Needs Trusts
Do you have a child or other beneficiary with special needs?
Leaving money directly to a beneficiary who has long-term special medical needs may threaten his or her ability to qualify for government benefits and may also create an unnecessary tax burden. A simple vehicle called a special needs trust is a more effective way to care for an adult child with special needs after your death.
Conditional Giving with Living or Testamentary Trusts
Do you want to place conditions on some of your bequests?
If you want your children or other beneficiaries to receive an inheritance based on certain prerequisites (life events such as marriage or at certain ages), you must utilize a trust, either one established during your lifetime (living trust) or one created through instructions provided in a will (testamentary trust). You can further use a trust if you would like any assets remaining at the death of your beneficiary (spouse) to be given to someone of your choosing. This is a popular estate planning tool used for blended families.
Estate Tax Planning
Do you expect your estate to owe estate taxes?
A basic will cannot help you lower the estate tax burden on your assets after death. If you think your estate will be liable to pay taxes, you can take steps during your lifetime to minimize that burden on your beneficiaries. Certain trusts operate to minimize estate taxes, and you may choose to make some gifts during your lifetime for tax-related reasons.
Joint Tenancy with Right of Survivorship
Do you own a house with someone “in joint tenancy”?
“Joint tenancy” is the most common form of house ownership with a spouse. This form of ownership is also known as “joint tenancy with right of survivorship,” “tenancy in the entirety,” or “community property with right of survivorship.” When you die, your ownership share in the house passes directly to your spouse (or the other co-owner). A provision in your will bequeathing your ownership share to a third party will not have any effect.
Financial Power of Attorney
Do you need someone to assist with your financial matters if you're incapacitated?
Clients often respond to this discussion by explaining that they don't need to appoint a financial agent because they're married and all assets are jointly held. However, the largest asset in most of your estates is likely your retirement account and that is held only in your name. If your spouse ever needs to contact someone regarding your retirement plan, the company will refuse to speak with them without a Power of Attorney.
Medical Power of Attorney/Health Care Directive
Would you like to appoint the person who will make medical decisions on your behalf?
You are able to appoint someone to make your medical decisions if you can't by using a health care directive. Without one, that person (even a spouse) will be forced to go to court to be appointed as a guardian to make such decisions. This can be a costly and lengthy process.
As you can see, there are many things to consider to ensure you have a full and comprehensive estate plan.This is such an important topic that the New York Times published an article how important it is to have more than just a will in the September 5, 2014 issue.
Please contact a Minneapolis estate planning lawyer to help work through the details of your estate.
Monday, September 01, 2014
Getting Married? Prenup Considerations Before You Say "I Do"
Although not every couple establishes a prenuptial agreement, there are several good reasons for having a smart prenup in place before saying those magical words, “I do.”Read more . . .
Thursday, August 28, 2014
Don't Disinherit with a Dollar
There are a lot of myths and misconceptions surrounding estate planning. Many people think that a last will and testament is the only estate planning document you really need. This of course is false. Others assume that you only need to have an estate plan in place if you’re a millionaire. This too is false. Another popular myth in the world of estate planning is that the best way to disinherit a relative (particularly a child) is to leave him or her a single dollar in your will. You probably guessed it- this too is entirely false.
The truth of the matter is that you must be very careful with leaving someone you really want to disinherit a token gift of $1 or some other small amount. By doing so, you have now made that person a beneficiary of your estate. It is possible, if not likely, that state law will require your executor to provide all beneficiaries with copies of all pleadings, an accounting, and notice of various administration activities. This may make it easier for this "beneficiary" to now complain about things and may cause problems for your executor which could cost your estate money.
Instead of leaving a token amount, you might consider mentioning the person by name so it is clear that you have not simply overlooked them. Then, you would specifically state you are intentionally disinheriting them from your estate. Also, consider if you wish to disinherit that person's children or more remote descendants and if so specifically state that as well in your will. You should consult with an estate planning lawyer to assist you in the proper wording as you will want to make sure there is as little likelihood of a will contest as possible.
Monday, August 18, 2014
Can You Remove A Trustee?
In creating a trust, the trustmaker must name a trustee who has the legal obligation to administer it in accordance with the trustmaker’s wishes and intentions. In some cases, after the passing of the trustmaker, loved ones or beneficiaries may want to remove the designated trustee.Read more . . .
Monday, July 07, 2014
Testamentary vs Revocable Living Trust
The world of estate planning can be complex. If you have just started your research or are in the process of setting up your estate plan, you’ve likely encountered discussions of wills and trusts. While most people have a very basic understanding of a last will and testament, trusts are often foreign concepts. Two of the most common types of trusts used in estate planning are testamentary trusts and revocable living trusts.
A testamentary trust refers to a trust that is established after your death from instructions set forth in your will. Because a will only has legal effect upon your death, such a trust has no existence until that time. In other words, at your death your will provides that the trusts be created for your loved ones whether that be a spouse, a child, a grandchild or someone else.
A revocable living trust is created by you while you are living. It also may provide for ongoing trusts for your loved ones upon your death. One benefit of a revocable trust, versus simply using a will, is that the revocable trust plan may allow your estate to avoid a court-administered probate process upon your death. However, to take advantage this benefit you must "fund" your revocable trust with your assets while you are still living. To do so you would need to retitle most assets such as real estate, bank accounts, brokerage accounts, CDs, and other assets into the name of the trust.
Since one size doesn’t fit all in estate planning, you should contact a qualified estate planning attorney who can assess your goals and family situation, and work with you to devise a personalized strategy that helps to protect your loved ones, wealth and legacy.
From within Hennepin County Unique Estate Law represents estate planning and elder law clients throughout Minnesota, including Minneapolis, Edina, Bloomington, St. Louis Park, Minnetonka, Plymouth, Wayzata, Maple Grove, St. Paul, and Brooklyn Park. The Minnesota law firm of Unique Estate Law focuses on all aspects of estate planning, including specialized wills, trusts, powers of attorney and medical directives for married couples, young families, blended families, single parents, gay families and those going through a divorce. Unique Estate Law also handles probate administration, asset protection, Medical Assistance planning, elder law, business succession planning, adoptions and cabin planning.