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    What Happens if I Die Without an Estate Plan?

    Friday, August 23rd, 2013

    Despite the importance of having an estate plan, many Americans die without one every day. Individuals who die without an estate plan are said to die intestate. If you die intestate, Georgia law determines how your assets will be distributed. All fifty states have laws concerning intestate succession.

    The purpose of intestate succession law is to distribute a decedent’s estate in a manner that conforms to what the average person would have wanted. Most intestate succession plans follow a standard pattern of transferring assets to a decedent’s closest relatives, beginning with his or her spouse and children. If the decedent does not have a surviving spouse or child, the assets will typically go to his or her parents, then his or her siblings, then his or her nieces and nephews, then to his or her grandparents. If no relatives can be located, a person’s estate will go to the state.

    Without an estate plan, your loved ones will have a more difficult time navigating the process of probate. The probate court will likely oversee the entire process, which will result in more time and higher costs. The probate court will also appoint an administrator. This person may not be the person you would have chosen, had you drafted a will.

    Not only can drafting an estate plan ensure that your assets will be distributed based on your wishes, but it can also ensure that more of your assets are going to your desired beneficiaries, rather than the government. Many estate planning tools such as trusts and other non-probate transfers are popular as tax avoidance measures.

    What Does a Probate Lawyer in Peachtree City Do?

    Tuesday, August 20th, 2013

    Oftentimes, a person isn’t even aware of what a probate lawyer in Peachtree City does until he or she is in need of one.  Of course, it is a great idea to hire a probate lawyer before you actually “need” his or her services so things can go as smoothly as possible when it comes to taking an estate through the probate process.  Unfortunately, that’s not always how it works.  It’s very common to go looking for a probate lawyer in Peachtree City once a loved one has passed and help is needed immediately.

    The Fayette County Probate Process

    The Peachtree City probate lawyer’s job is to offer assistance as an estate passes through the Fayette County Probate Court in order for it to be distributed properly.  There are several steps that the court must go through to open and close an estate, and the attorney’s job is to make sure everything is initiated and followed through on as these steps are being followed.

    Some of the basics of probate include:

    ·         Validating the will

    ·         “Marshalling” of assets

    ·         Getting appropriate appraisals for assets

    ·         Creating a list of debts

    ·         Paying debts

    ·         Dispersing the remaining property according to the will

    If there is no will, the estate is said to be “intestate,” and the court will have even more say in what becomes of the decedent’s property.

    When You Need a Probate Lawyer in Fayette County

    Not every estate needs a probate lawyer.  Some Peachtree City families have placed their assets into trusts that actually don’t go through the probate process, for example.  Additionally, some wills are very simple and easy to administer, say as in a case where there are little to no debts and common property is left to a surviving spouse alone.

    In most other cases, however, hiring a probate lawyer in Peachtree City will simplify the process for all involved and will most likely save the estate a fair amount of money.  That is because the attorney will be able to implement strategies to help lower the amount of taxes that need to be paid. 

    He or she can also become an objective outside party who may be able to act as the executor of the will in situations where family tensions run high.  Along those same lines, if someone with a legal financial interest in the estate wants to contest the will, it makes sense to have a probate attorney working to make sure the decedent’s wishes are carried out to the best of the court’s ability.

    Finally, it can be a good idea to get a Peachtree City probate lawyer involved in cases where an individual has a terminal illness.  The attorney can help to get affairs in order by drawing up a will and understanding first-hand what it is that the person wants for the estate.

    What the Probate Lawyer Will Do

    There are many, many tasks that the probate lawyer will perform on behalf of the estate.

    ·         Filing documents with the court

    ·         Creating lists of assets

    ·         Place legal notices in newspapers

    ·         Contact creditors

    ·         Make sure taxes are paid on the estate

    A Georgia probate lawyer must keep current on relevant laws as they change and will work to help clients and heirs follow all of the right procedures while doing their best to protect their interests.

    Lessons Learned from James Gandolfini’s Will

    Wednesday, July 17th, 2013

    No matter how much you have, estate planning is essential.

    When James Gandolfini, the actor who played mob boss Tony in HBO show “The Sopranos”, died of a heart attack at 51 last month, he left an estate valued at roughly $70 million. Commentators have declared his estate plan a “disaster” because the lack of planning leaves a significant estate tax bill. This means the people he loved will receive less money while the government will get a big chunk of his money to use as it sees fit. This violates the first principle of estate planning – staying in control. You only have three choices where your money goes when you die: Your family, charity and the government.  With better planning less money a smaller check would have to be made out to the IRS and Gandolfini’s loved ones and favorite charities would have ended up with more. While many people will not have to worry about paying estate taxes there are other lessons to be learned.

    The next problem is that because Gandolfini had a will based estate plan, in order to pass title to his property to his beneficiaries, his will had to be probated in New York. Once that happened, his will became a public record and now anyone can see who he left his assets to.  To better protect his privacy it would have made sense to have a trust based estate plan. That way probate would not have been necessary and the whole world would not have been able to learn the names of his beneficiaries and how much he left them.

    http://cbsnewyork.files.wordpress.com/2013/07/gandolfiniwill.pdf

    Another mistake in Gandolfini’s planning is that assets were left outright to his sisters. Because his sisters will own the assets outright , they are subject to being taxed twice: first at their brother’s death and again when they die. To avoid having to pay estate tax twice each sister should have been left her share in a continuing trust. Had this been done the money left to them would not have been in their own estate when they die and wouldn’t be subject to estate tax a second time. Each sister could have been named as trustee of her own trust with broad powers to use the money for their “health, education, or maintenance.”  In addition, through a “power of appointment” each sister could have determined who the trust would benefit and who would act as trustee if there were any assets remaining when they died. Finally,  leaving money to his sisters in a trust rather than outright would have protected the gift from both creditors and predators who might be attracted by his sisters’ new found wealth.

     

    Another problem is how Gandolfini left assets to his two children- Michael, from his first marriage, and Liliana, who is less than a year old. Under the terms of their trusts, each child gets complete control over millions of dollars the day they turn 21.  It is not a good idea to have a trust end at a certain age because you don’t know what the child will be like. Is a 21 year old mature enough to make decisions on how to spend money? What if they have a drug or alcohol problem?  It would have been better to have a continuing “discretionary” trust with professional trustees to manage and distribute money to the children.

    Will You Need a Probate Attorney?

    Wednesday, March 21st, 2012

    The subject of probate is one that nobody wants to learn about too early; in fact, most people would probably avoid it altogether if they could. Unfortunately, the probate process can be very confusing and frightening when you are forced to become intimately acquainted with it—especially if you have no prior experience with or knowledge of it.

    For a beneficiary, probate can be lengthy, expensive and frustrating; but if you have been named as executor, probate can suddenly become an overwhelming maze of deadlines, notifications and potential liabilities. This is why many executors choose to hire a probate lawyer to help them through the process.

    If you are the executor of a small estate with a straightforward will and one or two beneficiaries who are not contentious then you can probably do without an attorney. But you will want to think about hiring an attorney if you are serving as an executor under any of the following circumstances:

    * There are a number of beneficiaries who are not on friendly terms, or a number of beneficiaries receiving varying sizes of inheritance.

    * The decedent had large estate with many different assets, especially if the assets are not commonly held.

    * The decedent was a resident in a different state than your own home state.
    A large number of creditors are making claims on the estate.

    * There is a disagreement about the will, or if more than one will was found.

    * The will is challenged or contested.

    These are only a few of the reasons why you might want to consider hiring an attorney to help you through the probate process. If you aren’t sure whether you’ll need an attorney, don’t hesitate to call our office for a consultation. We can help walk you through the process and consider any obstacles that might arise. A little bit of foresight, and knowing you have an experienced professional on your side, can make all the difference in the probate process.

    Advice for Executors: How to Manage Final Medical Expenses

    Wednesday, March 14th, 2012

    Most people die in a hospital; sometimes after a long and slow decline, sometimes after a quick and unexpected tragedy. If you are an executor of the deceased’s estate this is significant because it means that there are usually final medical bills to be paid. What most executors do not know is that these final medical bills are not necessarily just like all the other final expenses, especially when it comes to filing a final tax return for the estate; this article from SmartMoney.com explains why.

    “…When a person incurs medical expenses and dies before they are paid, the executor of the decedent’s estate can elect to treat those medical expenses as if they were paid when incurred – as long as the estate pays the expenses within one year after the date of death. In other words, this election allows those expenses to be deducted on the decedent’s final Form 1040, even though they were not paid by the date of death.”

    Many executors may not think of this because medical expenses can only be deducted if they exceed a certain percentage of the deceased’s adjusted gross income (7.5% to be exact); but health care being what it is, final medical expenses can quite often reach this point.

    This sounds easy, but be careful if the deceased’s estate exceeds the $3.5 million estate tax exemption—you may want to look into other options. The article suggests that in this case it might be beneficial to “forgo the election and count the unpaid medical expenses as liabilities on the estate tax return.”

    As the executor of an estate you may have more options than you are aware of when it comes to taxes, probate, and achieving the best results for the beneficiaries. If you are unsure about any of these—or other—issues, please contact our office, we can help advise you on all angles of the trustee or probate process.

    What To Do After A Death In The Family

    Friday, March 2nd, 2012

    Anyone who has lost a close friend or family member knows that what a difficult, painful, and overwhelming time it can be. We are often asked to help our clients through probate process when a loved one dies, but probate isn’t the only thing you’ll have to think about; in fact, it may not even be the first thing you should think about. We know that nothing can make this process easy, but we hope this brief guide can help make the process of dealing with the death of a loved one somewhat less overwhelming.

    1. The first thing you’ll want to do is call close friends and family. They will share in your grief, and they can also share the responsibility of notifying others.

    2. Contact a funeral director. This person can help walk you through the process of planning a memorial, making burial arrangements, and even writing an obituary. This can often be the most overwhelming task, not because it is particularly difficult, but because it has to be done so quickly; sometimes before the reality of death has had a chance to sink in with the survivors.

    3. Find out if your loved one had a will. Contact their attorney (if they had one) and make sure you have the original for the probate court. If you aren’t sure how to file with will with the probate court you can contact an attorney, or check the website of the local probate office for the deceased.

    4. Order multiple copies of the death certificate. You will need these for the insurance company, as well as for some of the steps below.

    5. Collect the mail and contact all utility companies, credit card companies, debt collectors, etc.; call to notify them of the death and stop services.

    6. Go through the deceased’s files and paperwork. This can be tedious, time-consuming, and confusing, depending on how organized your loved one was. This is important information you (or the executor or trustee) will need to file final tax returns and pass on to the probate court, so don’t be afraid to ask for help when you need it.

    Dealing with the death of a loved one is one of the most difficult and overwhelming things you may ever have to do. If you are having a particularly hard time with the grieving process don’t be afraid to ask others to help with the more difficult items, or to hand the list over entirely to someone else if you feel unable to cope. This is when your own probate or estate planning attorney (or the deceased’s attorney, if they had one) can be especially helpful.

    Although it sometimes feels as if time should stand still when someone we love passes away, life does go on, for better or worse. But the world is full of caring and knowledgeable people to help you through the process… if you only know where to look.

    5 Basic Tips for Trustees

    Monday, February 13th, 2012

    Naming someone as trustee of your living trust is quite possibly one of the most difficult decisions you’ll ever make. The trustee is involved in just about every aspect of the administration of a trust; and although it is considered a great honor, it can also be a great responsibility.

    Most people choose someone close to them to serve as trustee: a best friend, son or daughter, brother or sister. Choosing someone who knows you and your family to serve in this role can be beneficial in many ways, but if that person doesn’t have a financial or legal background the responsibilities can be overwhelming! It is important that the person you nominate as trustee knows not only what is expected of trustees in general, but also knows what you expect of them as a trustee. For this reason, you may want to consider giving your nominated trustee these 5 Basic Tips for Trustees—and don’t forget to add your own personal requests as grantor.

    1. Make sure you read and understand the entire trust document. If you don’t have a legal background it is okay (preferable, in fact) to ask for help from an attorney.

    2. Always remember that the beneficiaries of the trust are your first priority and responsibility. Once you are trustee you have what is called a “fiduciary duty” to always act in the best interests of the beneficiaries.

    3. Make sure that the trust has its own separate checking account. If the trust is a living trust you as trustee will likely be the person who creates that separate account after the death of the grantor. Under no circumstances should a trustee mingle personal finances with trust finances.

    4. Maintain regular contact with the beneficiaries; not just to provide them with regular accountings of trust activity or investments, but also so you yourself can remain aware of the lifestyle, needs, and feelings of all the beneficiaries.

    5. Be sure you have a support team that will benefit the trust and the beneficiaries. Get investment advice from a financial professional; have a trusted attorney help with any legal questions you might have; hire a mediator to help if there are irreconcilable differences amongst the beneficiaries. The goal here is not to spend the trust funds frivolously, but to protect and preserve trust assets as the grantors would have wished for their beneficiaries.

    Speculation About the Estate of Steve Jobs Continues

    Friday, December 2nd, 2011

    The public has been curious about the estate of Steve Jobs ever since he passed away in early October, but with his assets wisely protected with a trust, his family’s privacy regarding the distribution of inheritance has remained intact. (Privacy is only one of the many benefits of using a trust as part of your estate plan.) However, what is not a secret is that Mr. Jobs’ significant investments in both Disney and Apple stock will pose some interesting questions for his advisors and heirs. Whatever the family chooses to do, it’s clear that estate tax and capital gains tax laws will have to be taken into consideration.

    This article in Investment News discusses what Jobs’ trustees or heirs might choose to do with his valuable investments. According to the article Jobs had billions of dollars invested in Apple and Disney stock. Now, “under the U.S. Tax Code, his heirs may sell shares of Apple and Disney, and avoid $867 million in capital gains taxes. If Apple’s late co-founder left his estate to his wife, Laurene Powell Jobs, the family won’t be liable for the 35% estate tax until she dies or gives money to others, according to estate planners.”

    An executor or trustee has a responsibility not only to follow the wishes of the grantor of the trust, but also to look out for the best interests of the beneficiaries; which in this case may include selling or diversifying investments Jobs had chosen to hold onto for sentimental reasons.

    Additionally, any executor or trustee will have tax laws to consider–not only the laws in place right now, but any changes to the estate or capital gains tax laws being considered by Congress for 2013. “The capital gains tax is set to rise to 20% in 2013, from 15%, and high-income Americans also will be subject to a 3.8% levy on unearned gains.” This means that advisors and heirs won’t want to wait too long before making any decisions.

    The estate of Steve Jobs may be larger than most, but the same issues and questions will face the executors, trustees, and heirs of estates of all sizes. Whether you are a grantor, executor, heir or trustee, our office can help you through any questions or concerns you may be facing. Don’t be afraid to contact us.

    How to Cope After the Death of a Spouse

    Friday, October 7th, 2011

    Losing a spouse may be one of the most difficult life events that any of us have to deal with. A spouse is a parenting partner, a co-CFO, a best friend and a beloved soul mate. Losing the person who supports you in so many ways can create an emptiness which can be almost paralyzing.

    This is why it’s so important after the death of a loved one to have the support you need to get through the detail-oriented and often emotionally draining probate process, which includes tasks such as sorting through a financial history, submitting legal documents to the probate court, contacting creditors and family members, and more. Some people have family or friends to help with these time-consuming tasks, others enlist the help of an estate planning or probate attorney, but one thing is clear: no one should do it alone.

    Every family or couple will have a different experience with the probate process, but our firm would like to offer a basic list of universal “to-do” items to remember after the death of a spouse. We hope this will help give our readers a little bit of security during a very emotional and stressful time.

    * Obtain multiple copies of the death certificate
    * Gather any and all estate planning documents
    * Contact an estate planning attorney. Even if you don’t plan to retain an attorney, a brief initial consultation can help you understand the task ahead and prevent you from skipping important steps
    * Notify the person named as executor or trustee
    * Notify the necessary institutions or agencies (the deceased’s employer, social security administration, insurance company, creditors, post office, etc.)
    * Remove spouse’s name from all joint accounts or ventures, such as bank accounts, utility companies, credit card accounts, etc.
    * Pay final bills
    * Cancel accounts, subscriptions, etc.

    Depending on your situation and location, there may be many more tasks to be done. Additionally, if you are serving as executor or trustee (as many spouse’s do) there will be a great number of administrative tasks to be performed in addition to the ones on this list. Under these circumstances even the strongest and most capable people can feel overwhelmed. Remember that you don’t have to go through the process alone.

    IRS Announces Another Extension for Estate Tax Filing Deadline

    Wednesday, September 14th, 2011

    Just a few weeks ago the IRS announced the November 15, 2011 estate tax filing deadline for large estates of decedents who passed away in 2010; but some executors might be relieved to know that the IRS recently extended the deadline to January 17, 2012.

    This extension gives executors of large estates more time to determine whether or not its in the best interests of the heirs to take advantage of the 2010 estate tax repeal. The decision facing executors of the 2010 estates is this:

    * Choose not to pay estate taxes, but subject the assets of the estate to carryover basis rules (meaning heirs will pay capital gains taxes based on the price of an asset when it was initially acquired by the decedent); or

    * Pay estate taxes under the 2011 rules, with a $5 million per-person exemption and a 35 percent top rate, but with a stepped-up income tax basis (meaning heirs will pay capital gains taxes on the price of an asset when it was inherited.)

    For any executors who haven’t already made the decision, they can now take more time to weigh the pros and cons, and maybe even enlist the advice of an estate planner, tax planner, or probate attorney to help walk them through any possible unexpected consequences. If you are an executor or an heir faced with this particular and time-sensetive issue, please don’t hesitate to contact our office for assistance.