March 20, 2018

Will Challenges in Canada

Contests over wills are increasing in Canada just as in the U.S. Despite there being several ways to successfully contest a will, it is not an easy thing to do.

Part of the population in the U.S. has seen continually rising wealth in the last few decades, while other parts of the population have not. In the process, one trend has emerged and that is that there are more wealthy estates that people deem worthy of fighting over. As a result, more wills are being contested in court by those who do not believe they have been left the inheritances they deserve.

The U.S. is not alone in this trend. The same thing has been happening in Canada, as The Globe and Mail reports in "Left out of the will? Here are your options."

The options for challenging a will in Canada are very similar to those in the U.S. There needs to be a good reason why the court should disregard the will and distribute the estate differently.

A common reason is by citing undue influence. That is the allegation that someone has inappropriately influenced another who has diminished capacity of some sort to create a will for the benefit of the influencer. It is not an easy case to prove, but it is possible to do so.

In the U.S. and in Canada, not just anyone can challenge a will. Only people who have a financial interest of some sort in the estate can make the challenge.

If you want to challenge a will, the first thing you need to do is visit an estate attorney. The attorney can evaluate your claim and let you know whether it is a good idea to proceed with a challenge.

Reference: The Globe and Mail (Feb. 26, 2018) "Left out of the will? Here are your options."

March 19, 2018

A Big Myth Concerning Trusts

If you do too much reading online about the difference between wills and trusts, then you are likely to think of the two as something that you have one or the other. That is a myth.

One of the key concerns for people planning their estates today, is whether they should use a will or a trust. Everyone seems to have an opinion about which one of the two main estate planning vehicles is better for general purposes. The two are often discussed, as if they are oppositional.

If you do some research and decide you want to get a trust, then you might go to an online service, pay a fee and download a form to create a trust. The problem? Getting a trust does not mean you should not get a will. You still need a will, as Lake County News discusses in "The difference between a trust and a will."

It is likely that when you pass away you will have some assets that for one reason or another were never put into your trust. Those assets will need to be distributed by your estate and often under the guidance of the probate court. You need a will so what you want done with those assets can be done.

Often that will is only a “pour-over will” that directs that everything should be transferred to your trust. However, there are other things you might also need to accomplish with a will, such as directing who should be appointed as a proper guardian for your minor children. You also might have some assets you do not want to go through a trust for other reasons, for which a will would be appropriate.

The best way to make sure you have all the documents you need in your estate plan, is to hire an estate planning attorney to draft your plan.

Reference: Lake County News (Feb. 24, 2018) "The difference between a trust and a will."

March 1, 2018October 25, 2023

Trusts May Be The Answer: When Minors are Your Heirs

If you think it is likely your heirs will be minors would when you pass away, it is best to do so differently than you would leave assets for adults.

If you have minor children, grandchildren or other relatives you want to include in your estate plan you should do so, because if you leave assets only to their parents, they might spend everything before the minors can inherit it.

You could also simply write provisions in your will, so the minors receive certain assets or a portion of your estate. However, that does not work in the same way leaving assets in a will to adults does. The probate court will have to hold hearings and determine who the best adult is to be in charge of handling those assets on behalf of the minors, until they come of age.

This can be inefficient and, unless you have left special instructions in the will, the person appointed by the court might not be the same person you would have appointed. There is a better way to leave assets to minors as the Times Herald-Record discussed in “Proper legal planning for minor beneficiaries.”

The better option is to create a trust and to fund the trust with the assets you would like to leave for the minors. You can appoint a trustee of your own choosing to administer the assets for the benefit of the minors. You also can leave instructions about how and when the assets are to be distributed for the children. That does not have to be the moment they reach the age of majority.

If you would like to leave part of your estate to minors, then talk to an estate planning attorney about creating a trust to do so.

Reference: Times Herald-Record (Feb. 1, 2018) “Proper legal planning for minor beneficiaries.”

February 6, 2018

Going to North Korea

The State Department suggests that you get an estate plan, should you decide to visit North Korea.

Despite the extremely tense relations between the U.S. and North Korea, it is possible for Americans to visit North Korea. There are probably very few U.S. citizens who want to go anywhere near North Korea. Those that do, are probably journalists and researchers.

The State Department recently offered some advice for Americans who are planning a trip to North Korea.

So, what is that advice?

The agency advises people to first get a will, make funeral plans and get a power attorney, as Fox News reports in "Visiting North Korea? Draft a will and make funeral plans, State Department says."

Traveling to countries other than North Korea is likely not nearly as dangerous. However, this is good advice before traveling to any foreign nation.

Before leaving on an overseas trip, it is a good idea to have an estate plan in place.

Having powers of attorney drafted is an especially good idea, in case anything does happen, so someone back home can handle all of your affairs.

It is unlikely anything will happen to you on your next vacation, but it is always good to be prepared.

Before you visit a foreign country, visit with an estate planning attorney so you can be prepared.

Reference: Fox News (Jan. 15, 2018) "Visiting North Korea? Draft a will and make funeral plans, State Department says."

January 25, 2018

What Does It Mean to Unduly Influence a Will?

Successfully contesting a will is not easy. There must be a reason why the court should not accept the will. A common reason is because there was undue influence in the will's creation.

Wills are supposed to be the testator's carefully thought out wishes about who should have their property after they pass away. They are supposed to be made with great care and after deliberation.

One of the key ideas behind wills is that the contents of the will are the wishes of the testator and only the testator. They should not be the result of anyone else pressuring the testator into doing something in a will that the testator does not really want.

When the will is the result of what someone else wants, it is known as "undue influence" as My Prime Time News discusses in "Undue Influence."

Undue influence can happen when someone who benefits from a will encourages the will's testator to create the will for the influencer's benefit. Merely encouraging someone to make a will does not create undue influence.

A common example is one child convincing his parents to leave him more in the will than his siblings. The siblings will be upset and may decide to challenge the will.

If the court does not believe there was a valid reason for the different inheritances, then the court will invalidate it on the grounds of undue influence.

One way to avoid having your will invalidated on undue influence grounds is to hire an estate planning attorney who can ask the appropriate questions to make sure the will you are getting, is really what you want and not what someone else wants. Profit Law Firm, is an estate planning attorney in Bethesda, who can help strenthen your will against attacks.

Reference: My Prime Time News (Jan. 18, 2017) "Undue Influence."

January 11, 2018November 26, 2024

You Might Need More Than One Will

People who have substantial assets in more than one nation, might need more than one will to have an effective estate plan.

Ordinarily people only have one will. They cannot have more than one. If they create a second will, then the first will is no longer valid.

This principle is central to estate law.

The last will a person drew up and executed, is the only will that should be used in the absence of extraordinary circumstances to settle an estate.

However, it is not always technically true.

There are people who might need more than one will. If you have assets in more than one country and are a citizen of both countries, then you might need a valid will in each country, as the Financial Review explains in “Double trouble for dual nationals.”

The problem is that some countries have strict laws about who can inherit certain property. There are laws about how much of an estate must be given to a spouse and to children.

Most countries do not allow deviation from these laws, even for people who do not live there full time and who have a valid will in another nation.

Even if your will is valid in the U.S., it is possible that another country where you hold assets could invalidate it for the property you hold in that country.

If your estate might be subject to the laws of more than one nation, make sure that your estate plan is valid in all the nations where you own property. If that does not seem possible, then have separate estate plans for the property in each nation. You may want to see an estate planning attorney in Bethesda, MD.

Reference: Financial Review (Sep. 20, 2017) “Double trouble for dual nationals.”

December 29, 2017

Moving to Another State and Your Estate Plan

I f you move to another state, you should review your estate plan to make sure that it will still work.

Americans often move from state to state, especially after they retire. The laws in most states are similar. However, there are sometimes minor differences that can have a big impact on estate planning.

That leaves many people wondering whether an estate plan they drafted in one state, will still be valid if they move to another state. The answer is “maybe,” as The Times Herald discusses in "Moving can affect your financial planning."

Generally speaking, if a will you had drafted was valid in the state in which it was drafted at the time it was drafted, the other states will consider it to be valid.

Trusts are valid in every state, since the state in which they were created always governs over the trust.

Most of the time your estate plan will be valid in your new state. However, there can be some issues, especially if you purchase real estate in your new home state. Some states have particular rules about how real estate has to be handled.

You should also be aware that your new state could have tax laws that are different than your old state. Something you have done in your estate plan might still be legal and valid, but it might not be tax-wise.

At a minimum, you should visit an estate planning attorney in your new state and let the attorney review your estate plan.

The attorney can tell you whether you should do something different to adapt to the laws of your new state.

Reference: The Times Herald (Dec. 1, 2017) "Moving can affect your financial planning."

December 12, 2017

Do Not Neglect Estate Planning

If you do not have a will, it might be assumed that your assets will go to your spouse or children. But you might very well be wrong.

For centuries the only people who bothered to make detailed estate plans were the wealthy. Most people had very few assets and did not have a great need to make detailed plans. Some people chose to draft a simple will, but most did not do even that.

Even today people still tend to think of estate planning as something really only necessary for wealthy people. Other people with lesser means tend to assume that if they do not do any estate planning they do not need to worry. They think their spouse or children will inherit their assets and they do not need to bother actually drafting a will. In Maryland

That is a mistake as the Wills, Trusts & Estates Prof Blog explained in "Estate Planning Is Not Just for the Ultra-Rich Anymore."

If you do not have an estate plan, then any assets you have at the time of your death will be distributed according to the laws of intestate succession in your state.

In some states, that means your assets will pass to your spouse and your children. However, other states have different laws and they sometimes give assets to people who might not have been included in an estate plan, such as siblings and parents. In Maryland, without a will, 1/2 goes to the spouse and 1/2 to the minor children. Do you want your 5 year old to inherit half? If you want more control, then hire an estate planning attorney. In DC a spouse and minor children inherit, without a will, as well. In order to minimize the costs of probate, however, you will need an estate plan.

It is not difficult to get a will from an estate planning attorney.

There is no reason you should leave things up to state law.

Get an estate plan and make sure that your assets are distributed as you choose.

Reference: Wills, Trusts & Estates Prof Blog (Nov. 16, 2017) "Estate Planning Is Not Just for the Ultra-Rich Anymore."

December 8, 2017March 7, 2023

Lesser Known Estate Planning Mistakes

There are many articles written about mistakes in estate planning. They often mention the same few things over and over again.

That is good.

The more often mistakes are mentioned, the less likely it is that people will make them.

However, it also means other estate planning mistakes do not get mentioned very much, despite the fact that people often make them.

The Ithaca Times recently discussed some of those lesser mentioned estate planning mistakes in “Key estate planning mistakes to avoid,” including:

• Forgetting to update an estate plan when a spouse or child passes away. It might not be the best time for you to change your estate plan, especially given everything you are going through. Not doing so, can result in problems later.

• Not reviewing and updating retirement plan and insurance policy beneficiaries for years.

• Many people have the mistaken belief that if they have a will, then their estates will not go through probate. That is almost never the case. If your objective is for your estate not to go through probate, see an estate planning attorney to learn how to accomplish that.

• People too often assume that once their children reach the age of 18, they will be able to responsibly handle any inherited assets. That may not be the case. You should plan for any minor children to have assistance with assets for longer than that.

Reference: Ithaca Times (Nov. 8, 2017) “Key estate planning mistakes to avoid.”

November 1, 2017March 7, 2023

Wills Must Go through Probate

It is not always clear how mistaken estate planning beliefs get started. It usually happens on the Internet
with people seeking out legal advice from often bad sources.

Sometimes, it starts with a television show or movie that has played loose with the law.

Regardless of how mistaken beliefs start, it is important to make sure that you do not believe any of
them.

One that more people believe than might be expected, is that wills do not have to go through probate.

That is just wrong, as TC Palm discussed in “Common misconceptions about wills and trusts.”

This idea probably got its start, because in some states if an estate is small enough, then it does not have
to go through probate. Usually, these are very small estates with very few assets.

Someone with good intentions probably had a relative or friend who passed away with few assets and
as a consequence, the will did not have to go through probate.

However, most wills do have to go through probate. They need to be submitted to the court and
approved.

The probate court then oversees the administration of the estate as conducted by the executor or
personal representative.

If you want your estate to avoid probate, what you need is not a will.

Instead you need to use other estate planning instruments, such as trusts.

Trusts do not have to go through probate in almost all cases. If you would like to get one, schedule an
appointment with an estate planning attorney.

Reference: TC Palm (Oct. 5, 2017) “Common misconceptions about wills and trusts.”

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