Wednesday, April 15, 2015
An executor's fee is the amount charged by the person who has been appointed as the executor of the probate estate for handling all of the necessary steps in the probate administration. Therefore, if you have been appointed an executor of someone’s estate, you might be entitled to a fee for your services. This fee could be based upon a variety of factors and some of those factors may be dependent upon state, or even local, law.
General Duties of an Executor
- Securing the decedent's home (changing locks, etc.)
- Identifying and collecting all bank accounts, investment accounts, stocks, bonds and mutual funds
- Having all real estate appraised; having all tangible personal property appraised
- Paying all of the decedent’s debts and final expenses
- Making sure all income and estate tax returns are prepared, filed and any taxes paid
- Collecting all life insurance proceeds and retirement account assets
- Accounting for all actions; and making distributions of the estate to the beneficiaries or heirs.
This list is not all-inclusive and depending upon the particular estate more, or less, steps may be needed.
As you can see, there is a lot of work (and legal liability) involved in being the executor of an estate. Typically the executor would keep track of his or her time and a reasonable hourly rate would be used. Other times, an executor could charge based upon some percent of the value of the estate assets. What an executor may charge, and how an executor can charge, may be governed by state law or even a local court's rules. You also asked whether the deceased can make you agree not to take a fee. The decedent can put in his or her will that the executor should serve without compensation but the named executor is not obligated to take the job. He or she could simply decline to serve. If no one will serve without taking a fee, and if the decedents will states the executor must serve without a fee, a petition could be filed with the court asking them to approve a fee even if the will says otherwise. Notice should be given to all interested parties such as all beneficiaries.
If you have been appointed an executor or have any other probate or estate planning issues, contact us for a consultation today.
Monday, February 23, 2015
A Discussion of Wills, Part 3: Beware of “Simple” Estate Plans
“I just need a simple will.” It’s a phrase I hear at least once a week. What could be wrong with that? This post explains the many common situations in which a "simple will" may not be a good fit for your family tells the cautionary tale of one family who relied on a will purchased at a stationary store.Read more . . .
Monday, November 24, 2014
What is a Successor Trustee
A Minneapolis Estate Planning Lawyer Defines a Successor Trustee and Explains Why You Should Have One
You did everything right. You sat down with a lawyer, paid her to draft your estate plan, created a living trust and named each other as trustees. But, the unthinkable happened and your spouse died before you did. You were so sure it would be you first. Your lawyer now explains that you are the successor trustee and that you must now administer your spouse's trust. What does she mean by a successor trustee? Read more . . .
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.Read more . . .
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.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.Read more . . .
Thursday, May 29, 2014
What is Estate Recovery?
Minneapolis Estate Planning Attorney Explains Minnesota's Medical Assistance Program.
Medicaid, known as Medical Assistance in Minnesota, is a federal health program for individuals with low income and financial resources that is administered by each state. This program is intended to help individuals and couples pay for the cost of health care and nursing home care.
Most people are surprised to learn that Medicare (the health insurance available to all people over the age of 65) does not cover nursing home care. The average cost of nursing home care, also called "skilled nursing" or "convalescent care," can be $8,000 to $10,000 per month. Most people do not have the resources to cover these steep costs over an extended period of time without some form of assistance.
Qualifying for Medical Assistance can be complicated as it is governed by a combination of federal state laws/rules. Once qualified for a Medical Assistance subsidy, Medicaid will assign you a co-pay (your Share of Cost) for the nursing home care, based on your monthly income and ability to pay.
At the end of the Medical Assistance recipient's life (and the spouse's life, if applicable), the county who paid for care will begin "estate recovery" for the total cost spent during the recipient's lifetime. The county will issue a bill to the estate, and will place a lien on the recipient's home in order to satisfy the debt. Many estate beneficiaries discover this debt only upon the death of a parent or loved one. I have numerous clients who came to me upon trying to sell their parents' house only to learn - sometimes at closing - that there was a Medical Assistance lien on the property. In many cases, the Medical Assistance debt can consume most, if not all, estate assets.
There are estate planning strategies available that can help you accelerate qualification for a Medical Assistance subsidy, and also eliminate the possibility of a Medical Assistance lien at death. It is very important to consult with an experienced elder law attorney in your jurisdiction.
Sunday, March 23, 2014
How Do You Put Assets Into Your Trust?
A Minneapolis Estate Planning Attorney Answers the question: What Does the Term "Funding the Trust" Mean?
If you are about to begin the estate planning process, you have likely heard the term "funding the trust" thrown around a great deal. What does this mean? And what will happen if you fail to fund the trust?
The phrase, or term, "funding the trust" refers to the process of titling your assets into your revocable living trust. A revocable living trust is a common estate planning document and one which you may choose to incorporate into your own estate planning. Sometimes such a trust may be referred to as a "will substitute" because the dispositive terms of your estate plan will be contained within the trust instead of the will. A revocable living trust will allow you to have your affairs bypass the probate court upon your death, using a revocable living trust will help accomplish that goal.
Upon your death, only assets titled in your name alone will have to pass through the court probate process. Therefore, if you create a trust, and if you take the steps to title all of your assets in the name of the trust, there would be no need for a court probate because no assets would remain in your name. This step is generally referred to as "funding the trust" and is often overlooked. Many people create the trust but yet they fail to take the step of re-titling assets in the trust name. If you do not title your trust assets into the name of the trust, then your estate will still require a court probate.
A proper trust-based estate plan would still include a will that is sometimes referred to as a "pour-over" will. The will acts as a backstop to the trust so that any asset that is in your name upon your death (instead of the trust) will still get into the trust. The will names the trust as the beneficiary. It is not as efficient to do this because your estate will still require a probate, but all assets will then flow into the trust.
Another option: You can also name your trust as beneficiary of life insurance and retirement assets. However, retirement assets are special in that there is an "income" tax issue. Be sure to seek competent tax and legal advice before deciding who to name as beneficiary on those retirement assets.
The estate planning attorney at Unique Estate Law offers all clients a 6-page set of Funding Instructions to help walk you through the process after you've left the office and can't recall how to put your checking account into your trust.
Sunday, January 19, 2014
Protect Your Family Cabin with a Trust
Protecting Your Vacation Home with a Cabin Trust
Many people own a family vacation home--a lakeside cabin, a beachfront condo--a place where parents, children and grandchildren can gather for vacations, holidays and a bit of relaxation. It is important that the treasured family vacation home be considered as part of a thorough estate plan. In many cases, the owner wants to ensure that the vacation home remains within the family after his or her death, and not be sold as part of an estate liquidation.
There are generally two ways to do this: Within a revocable living trust, a popular option is to create a separate sub-trust called a "Cabin Trust" that will come into existence upon the death of the original owner(s). The vacation home would then be transferred into this Trust, along with a specific amount of money that will cover the cost of upkeep for the vacation home for a certain period of time. The Trust should also designate who may use the vacation home (usually the children or grandchildren). Usually, when a child dies, his/her right to use the property would pass to his/her children.
The Cabin Trust should also name a Trustee, who would be responsible for the general management of the property and the funds retained for upkeep of the vacation home. The Trust can specify what will happen when the Cabin Trust money runs out, and the circumstances under which the vacation property can be sold. Often the Trust will allow the children the first option to buy the property.
Another method of preserving the family vacation home is the creation of a Limited Liability Partnership to hold the house. The parents can assign shares to their children, and provide for a mechanism to determine how to pay for the vacation home taxes and upkeep. An LLP provides protection from liability, in case someone is injured on the property.
It is always wise to consult with an estate planning attorney about how to best protect and preserve a vacation home for future generations.
Monday, December 02, 2013
14 Costly Misconceptions About Planning for Your Senior Years
A Minneapolis Estate Planning and Probate Lawyer Discusses Estate Planning Issues Specific to Seniors
Misconception #1: Most seniors move into nursing homes as a result of minor physical ailments that make it hard for them to get around. Wrong! A large percentage of admissions to nursing homes is because of serious health, behavior, and safety issues caused by Alzheimer’s disease and dementia.
Misconception #2: Nursing home costs in Minnesota average $1,500 to $2,500 per month per person. Hardly. Current nursing home charges for one resident typically run $6,000 per month, or $72,000 per year, which does not include prescription drugs -- and those costs continue to rise.
Misconception #3: Children can care for a parent with Alzheimer’s disease at home, without the need for nursing home care. Not true! Many patients with Alzheimer’s disease end up in nursing homes because children are simply unable to provide the level of care their parent needs. In most cases, the children want to care for their parents. But, as a practical matter, they simply can’t. Moving a parent into a nursing home is an intensely personal issue and should not be labeled as a right or wrong decision. In many cases, it’s the only realistic option. The rare exception is when the family has enough money to pay for skilled nursing care at home.
Misconception #4: Standard legal forms are all you need for a good estate plan. Not true. A competent estate plan begins with clearly defined goals, supported by well-drafted legal documents, and the repositioning of assets, as needed, to protect your estate from taxes, probate costs, and catastrophic nursing home costs. But you MUST PLAN EARLY.
Misconception #5: Your child will never move you into a nursing home. Wrong. Most children consider all options before moving a parent into a nursing home. But, sadly, children usually find they have no other alternative. As a result, parents who never expected to live in a nursing home soon discover that a nursing home is the only place with the staff and equipment to provide the care they need.
Misconception #6: As payment for nursing home care, the government will take your family home. Not true, if you plan ahead. Many people fear that the government will take their home in exchange for nursing home care, but you can avoid this with proper planning. You’ll be glad to know there are some ways you can protect your home so it won’t be taken.
Misconception #7: You will never end up in a nursing home. That’s hard to predict. Your odds are roughly 50/50. Of Americans reaching age 65 in any year, nearly half will spend some time in a nursing home. And a surprising number will require care for longer than one year. That means every year, tens of thousands of seniors will face costs of $48,000 or more ($60,000 in Minnesota), which does not include the cost of prescription drugs.
Misconception #8: If your spouse enters a nursing home, all of your joint savings will have to be spent on his or her care. No. With proper planning you can keep half of your combined “countable” assets up to approximately $103,000 (increasing each year). In some circumstances, you may be able to protect nearly all of your life savings. In fact, it is often possible to protect much more than the $103,000 maximum. “Countable” assets are those assets such as cash, checking accounts, savings, CDs, stocks, and bonds that the government considers available to be spent on the cost of nursing home care.
Misconception #9: Legally, you can give away only $14,000 to each of your children each year. Not true. You can give away any amount, but you have to report to the IRS gifts in excess of $14,000 per recipient per year ($28,000 if both husband and wife make a gift). However, there is no requirement that you pay any gift tax unless you have exhausted your lifetime exclusion amount, which is currently set at $2,000,000 for an individual. But, there is a "look back" period so you must work with a qualified attorney before gifting away any assets as you age.
Misconception #10: You can wait to do long-term planning until your spouse or you get sick. Yes, to some degree. However, you and your spouse will be much better off if you have taken important planning steps in advance, before a crisis occurs. What stops most people from being able to effectively plan when they are in the middle of a crisis is that the ill person is unable to make decisions and sign the necessary legal documents.
Misconception #11: All General Durable Powers of Attorney are created equal. Completely false! A General Durable Power of Attorney is a highly customized legal document -- and NOT a form! Most Durable Powers of Attorney don’t contain even the most basic gifting authority. Without a gifting power, your agent is usually limited to spending your money on your bills and selling your assets to generate cash to pay your bills. Some Durable Powers of Attorney contain a gifting provision, but the Minnesota Statutory Power of Attorney it is limited to $10,000 per year. This is particularly concerning for unmarried couples as the IRS considers ANY exchange of money/assets between them to be a gift. The annual limit of $10,000 is too small for effective asset protection planning, and relates to a completely different type of federal estate and gift tax issue. Unique Estate Law has created an enhanced power of attorney to get around that limit.
Misconception #12: Since you are married, your spouse will be able to manage your property and make financial decisions without a general durable power of attorney. Not true. If you become incapacitated and your spouse needs to sell or mortgage the family home -- or gain access to financial ac-counts that are in your name only -- your spouse will need a general durable power of attorney. Without one, your spouse will have to go to Court and get the judge’s permission to act on your behalf by way of a conservatorship proceeding.
Misconception #13: You can hide your assets while you become eligible for Medicaid (Known as Medical Assistance in Minnesota). False! Intentional misrepresentation in a Medicaid application is a crime and can be costly. The IRS shares any information concerning your income or assets with the local Medicaid eligibility office. You -- or who-ever applied for Medicaid -- may have to repay Medicaid to avoid prosecution.
Misconception #14: Medicaid rules that applied to your neighbor when he went into a nursing home will also apply to you. Maybe not. Medicaid rules change. Don’t assume the law that applied to your neighbor will also apply to you. In addition, there may have been facts about your neighbor’s situation that you just don’t know.
Monday, November 18, 2013
Updating Your Estate Plan, Part II: Signs It's Time to Update Your Estate Plan
A Minnesota Estate Planning and Probate Attorney Lists 20 Red Flags That Signal When Your Will or Living Trust is Out of Date
I offer clients the opportunity to sit down with me and review their estate plans at least once each year. However, this doesn’t mean you should wait until your next review if your circumstances change. This Estate Planning Checklist identifies events that could make a significant impact on your estate. If any of these events occurs, please call me. For your protection, we may need to amend or revise one or more of your estate planning documents.
Changes Involving You or Your Spouse/Partner
1. You get married.
2. You and your spouse divorce or partner break up.
3. Your spouse/partner dies or becomes incapacitated.
4. Your health changes.
Changes Involving Your Children, Grandchildren or Other Beneficiaries
5. You have a child.
6. You adopt a child.
7. Your child marries.
8. Your child divorces.
9. Your child becomes ill.
10. One of your beneficiaries experiences an economic change, good or bad.
11. One of your beneficiaries proves to be financially irresponsible.
12. One of your beneficiaries has a change in attitude toward you.
Changes in Your Economic Condition
13. The value of your assets increases or decreases.
14. Your insurability for life insurance changes.
15. Your employment changes.
16. Your business interests change, such as becoming involved in a new partnership or corporation.
17. You retire from your business or profession.
18. You acquire property in a different state.
19. You move to a different state.
Changes to a Person Named in Your Estate Plan
20. Something happens to a person named in your estate plan, such as the death or incapacity of your personal representative, executor, trustee, guardian or conservator.
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.