Estate Planning and Administration

A general term used to describe the overall process of evaluating a client's assets and goals and implementing a plan of documents to help him/her achieve his/her stated goals. Such documents include, where applicable, the use of testamentary wills, bypass or credit shelter trusts, disclaimer trusts, marital trusts, and minors' trusts, durable financial powers of attorney, advance directives for health care, business succession documents and by shifting title to assets.

Once referred to as a “living will,” an advanced health care directive serves two main functions. First, it serves as a statement of your wishes to maintain or terminate extraordinary life support where death is imminent and there is no hope of recovery. Second, it serves as a health care power of attorney if you are expected to recover, but need to have someone make health care decisions on your behalf due to a temporary disability.

An important document appointing another person to serve as your attorney in fact to make contractual and financial decisions for you if you are unable to make them yourself. With special language, it can become known as a durable power of attorney, meaning that the person you appoint can continue to make decisions on your behalf even following your disability or if you are no longer mentally competent.

Whether your estate is simple or complex, every person should have a testamentary will in place that directs the transfer of assets to your intended beneficiaries, appoints guardians to take care of your children, and creates trusts to manage their inheritance. The testamentary will also designates a personal representative to oversee these tasks. A qualified lawyer can easily help you modify a testamentary will through the use of a codicil.

These trusts are effective tools that are used to reduce or, in some cases, eliminate estate taxes. They are used in conjunction with the unlimited marital deduction by retaining a portion of the decedent’s assets in his/her estate in order to utilize the unified credit available to each person that is exempt from estate tax.

An acronym for Qualified Terminable Interest Property, this trust is often used by couples in second marriages who want to provide for the surviving spouse while also assuring that his/her children from a prior marriage are protected.

Also known as living trusts, these trusts are excellent tools for providing continuous management of an individual’s assets without resorting to the appointment of a guardian. The person establishing the revocable trust is known as the settler. Typically, the settler also serves as his/her own trustee, managing the trust assets so long as he/she is capable. Upon the death or disability of the settler, a successor trustee, already named in the document, takes over managing the trust assets.

An irrevocable insurance trust, also known as an ILIT, is a very effective way of acquiring large amounts of life insurance for your spouse, children and other beneficiaries without having it included in your gross estate for estate tax purposes. A special notice, known as a Crummey Letter, must be issued whereby beneficiaries of the trust holding withdrawal powers are given the right to claim their share of monies gifted to the trust. When the right of withdrawal lapses, the gift is considered to be completed and the trustee is empowered to use the gifted funds to pay the life insurance premiums

These trusts may be used by individuals to provide benefits for both specific beneficiaries and charities. The Charitable Remainder Trust provides income to beneficiaries for their lifetime or for a particular term of years, with the remainder given to charities. The Charitable Lead Trust provides income to a charity or charities for a particular period of time with the remainder going to named beneficiaries. Both trusts, if used properly, can have significant income and estate tax benefits.

Probate of wills and estate administration often involves a series of steps involving the gathering of assets, identification of debts, inventory valuations, petitions and accountings to the court. The process concludes by making distributions in accordance with the will or according to statute, and the timely preparation of personal and fiduciary tax returns, as well as estate tax returns. Each of these items has strict guidelines and requires compliance with statutory provisions. For most people, the complexity and volume of the work involved in administering an estate makes it cost effective to have an experienced attorney involved. An experienced attorney can also present various options and alternatives, such as modified administration, which will streamline the process and minimize total time and cost.

After an individual’s death, an experienced attorney can work with the family to determine the best way to transfer the decedent’s assets. Such planning may involve the use of disclaimers, which permit named beneficiaries to renounce their rights to a bequest in favor of another person or persons. It may also include tax planning and timing issues, as well as asset valuation questions.

Typically, following a person's death, a lawyer is consulted to review the decedent's assets in conjunction with his/her testamentary documents and to make recommendations on the most efficient way of administering the estate. Depending upon the size of the estate and how the assets were titled, no estate administration may be necessary. In other cases, a variety of documents need to be prepared and statutes complied with. Retaining competent counsel, experienced with the governing laws, can prove extremely beneficial.

Guardianships of an individual's person or property, as well as adoptions and name changes, require an attorney to prepare the appropriate petitions in compliance with the governing laws. Often times, with consents from interested persons, as well as working with an experienced attorney, the process can be expedited.

Elder law is a term used to describe a number of areas of concern including, but not limited to, estate planning, wills, trusts, advance medical directives, financial powers of attorney, social security and retirement benefits, Medicare benefits, Medicaid benefits, health insurance, guardianships and the protection against elder abuse.

A Will Caveat is a legal proceeding challenging, in whole or in part, the legality or enforceability of a testamentary will.