Originally published on the Gudorf Law Group blog on May 31, 2014, by Ted Gudorf
Any trust and estates lawyer can tell you that they have to ask their clients a lot of very uncomfortable questions. Who really wants to think about their own mortality and contemplate what life will be like for their families after their own death or if they were to be incapacitated? But, by facing these thoughts and questions, you are actually able to have a greater say in what will happen than you would by avoiding the topic altogether.
So, what kinds of issues need to be addressed with your trust and estates lawyer? Whether you live in Fair Oaks or New York City, there are some basic questions that absolutely must be answered.
You and Your Spouse
One of the most difficult issues to contemplate is what should happen if you and your spouse were both pass at the same time. While the chance of this happening at the same time is relatively low, it does happen and is something you need to be prepared for. Laws are typically set up so that one spouse’s estate passes to the surviving spouse, but when both are gone at the same time, things get a little more complicated.
For example, those with minor children need to put serious thought into who will become their children’s guardian. If you don’t make these decisions in advance, the courts will make them for you; and their choices may not reflect your own. It’s not uncommon for grandparents to receive custody of the children in these cases if they are still living, but that still leaves open the question of which spouse’s parents would be chosen. If you have a preference (or want someone else chosen), then you need a trust and estates lawyer in Dayton to help you make those wishes legally binding.
Children are not the only concern, of course. Should you and your spouse be killed or incapacitated, who will take care of your finances, inherit your home, or even take care of your pets? These are all issues which need to be considered in advance.
You and Someone Else
Your estate planning lawyer isn’t just being nosey if he or she asks if there is someone in your life besides your spouse who may have a claim to your property. This definitely falls into the category of “uncomfortable questions,” but if you had a relationship with someone other than your spouse, he or she may come forward after your death with the expectation of receiving an inheritance.
This can also be the case with family members who are estranged. If you have a child you are no longer in contact with, he or she may still have a claim to your property. Long-lost siblings or parents to whom you are no longer speaking can also still have a claim. By setting out your plan with a trust and estates lawyer in Dayton, you can help to ensure that only those you want to inherit will do so.
As a final note in this area of “uncomfortable topics,” if you and a spouse, previous spouse, or other person have chosen to store genetic material such as eggs, sperm, or embryos, you need to have plans for what is to become of this material. Not only do you need to consider the material itself, but you also need to consider who might end up with children that have been conceived after you die.
Each of these issues is complicated in and of itself, but in order to come up with a workable estate plan, they must all be considered. If your trust and estates lawyer doesn’t bring up some of these questions but they apply to you, it is in your best interest to bring it up now to avoid problems with your estate later.
Why Do I Need an Executor?
A will is a document that dictates “who gets your stuff” when you go to the great beyond. In the will, we dictate the terms of how and to whom we would like to distribute our estate, the amounts, and all the fine details of passing along that which we spent a lifetime accumulating. Let’s talk about the thankless job of an Executor.
Your Executor is the person or persons you determine suitable to see to it that all the terms and decisions of your will get carried out according to your wishes. It is advisable that before you assign the role of Executor to your will during your drafting stage that you speak with him or her to determine if they will accept the job. In a committed relationship, it is usually the spouse or partner, but it is not uncommon to assign the task (if agreed to) to another member of the family or professional. While the Executor may have the power to hire other professionals to do the various jobs associated with the task, it is advisable to select an individual who is somewhat savvy in the ways of the world, as the court system, accounting, and legal documentation is a part of settling one’s estate.
Upon your death, it is the Executor’s job to find the latest copy of the will, read it, interpret it and file a petition with the court to probate the will. They assemble of your assets, and set in motion the sale of any real property that would be part of the liquidation of the estate: cars, house, boat, etc. A search for all investments, bank accounts, savings accounts, and other investment assets is done to corral all the assets into one place. A bank account is set up in the name of the deceased, and as assets are sold or liquidated, the funds are put into this account which will eventually be split amongst the beneficiaries. Life insurance policy claim forms are filled out and submitted, and the beneficiaries named in the policy will receive the death benefit. The death benefit is tax free to the receiving individuals, but is counted in the gross estate of the deceased for estate tax purposes.
All assets are inventoried, for an eventual and complete accounting of the estate. Any debts left behind by the deceased are paid, along with burial and funeral expenses. A final tax return is done, and all taxes, federal and state, are paid. All professionals are paid, and the Executor, if a prior agreement is reached, may deduct his or her fees. If there are specific bequests in the will, those checks will be sent out prior to the full disposition of the deceased estate. Finally, once all is done, taxes are filed, everything is liquidated and in the trust account, debts are paid and taxes are paid, the beneficiaries will get their inheritance based on the will instructions. Each estate has its own quirks and nuances as each person is different as well as their wishes and needs, and may vary from state to state.
The selection of your Executor is a very personal one and there is no right or wrong as to who to assign this job to. Just remember that the person who you leave behind to do the job is doing it because they care about you- be confident in your decision.
At the Gudorf Law Group, LLC, we believe in careful planning and proactive solutions to overcome challenges and issues before they arrive. With knowledge and foresight, we put our clients on a solid footing, so that the rollercoaster of life does not catch you by surprise. – see more at https://www.daytonestateplanninglaw.com/asset-protection/2014/03/31/key-questions-ask-estate-planning-attorney/