Estate Planning

Practice Area

Estate Planning

At Ross & Ross, Attorneys at Law, LLC, we believe in a very practical approach to Estate Planning.  In order to create a good estate plan it is necessary to understand and consider many areas of the law, including, real estate, business, estate taxation issues, as well as, interfamily relationships and the balancing of all of these issues.

We represent Executors, Administrators, Trustees and Beneficiaries with regard to estate and trust administration, as well as, estate disputes.

Some of the most hotly contested lawsuits involve disputes between family members. After a Will is probated or an estate is admitted for administration, the Executor or Administrator has a duty to properly account to the beneficiaries of the estate.  If an Executor or Administrator is not handling his or her duties properly an interested party may bring an action against the estate.  An action may also be brought to contest a Will.  However, a Will contest may only be filed within four months after the Letters Testamentary or Administration have been issued, six months for an out of State party. However, the time period may be extended (30) thirty days by Order of the Court upon a showing of good cause and the absence of prejudice.

A Will Contest is a direct attack upon a person’s Will which has been admitted to probate.  Occasionally a controversy arises whereby a surviving party questions the testator’s Will in one fashion or another.  When this claim is made, many times there is a question as to an undue influence which has been asserted against the testator by a party in a confidential relationship.

When most individuals die, their assets are distributed either by operation of law or through an estate proceeding. Some people have been opting to avoid probate through the use of revocable trusts and other estate planning techniques.  There are advantages and disadvantages to this technique. Also, there is no tax savings as some people may believe.

The difference between probate and administration is whether or not the individual dies with or without a Will.  A probate occurs when a valid will is in existence at the time of the individual’s death.  An administration is required when no valid Will is in existence.  The process by which estate proceedings are handled is governed by the Surrogate Court and specific rules must be followed. 

A health care directive is similar to a power of attorney in that a person appoints an agent to make health care decisions for the principal in the event the principal is unable to communicate his or hers intentions and desires relating to their treatment. The health care directive, living will and power of attorney are often created in conjunction with one another.

At Ross & Ross, Attorneys at Law, LLC, we believe in a very practical approach to Estate Planning.  In order to create a good estate plan it is necessary to understand and consider many areas of the law, including, real estate, business, estate taxation issues, as well as, interfamily relationships and the balancing of all of these issues.

We represent Executors, Administrators, Trustees and Beneficiaries with regard to estate and trust administration, as well as, estate disputes.

A Living Will is a document which states ones intentions to either withhold or withdraw life sustaining treatment from the individual in the event of an incurable or irreversible condition that will generally cause death within a relatively short period of time.  However, the living will can also be tailored to cover a wide range of scenarios, including experimental procedures, whether or not to utilize a respirator, whether or not to utilize a feeding tube, whether or not to administer medications and a host of other directives.

A Power of Attorney is a written instrument whereby a person (the Principal) appoints another person (the Agent or Attorney in Fact) as his or her agent and confers certain authority to perform specific acts or types of acts on behalf of the principal. The power of attorney, however, only speaks while the principal is alive. The power is revoked upon the death of the principal by operation of law. Powers of attorney can be drafted to grant very broad and sweeping authority to the attorney in fact, but they can also be drafted for more specific purposes which will limit the attorney in facts authority to a specific function or time period.

Trusts – A Trust is generally an entity for the benefit of designated beneficiaries. The trust is created by agreement and usually governed under the laws of the State the Trust was created. The essential elements of a trust consist of a written agreement, the designation of a trustee and beneficiary as well as a defined monetary fund or item of value. There are numerous different types of Trusts. A few of the types of trusts are: revocable trusts, credit shelter trusts and martial trust, qualified terminal interest property trusts (Q-Tip), Life insurance trusts, dynasty trusts, intentionally defective grantor trusts, grantor retained annuity trusts (GRAT)

Wealth Preservation Tips

  1. Prepare a Will – Update your will, Create a living will  — Have your lawyer speak with your financial consultant.
  2. Consider transferring title to your Assets out of joint accounts –  have assets in your own name rather than jointly , utilize a revocable living trust
  3. Carefully review and monitor your  Retirement Assets
  4. Consider utilizing the annual gift tax exemption
  5. Maintain liquid assets to satisfy estate taxes  – Four Typical Sources of Funding for Estate Tax Liability: Cash, Loans, Liquidation, Life Insurance
  6. Consider creating an Irrevocable Trust to  hold your life Insurance Policy
  7. Keep track of you assets and there location. Your executor might miss some assets if they are not easily located.  Be sure to choose your Executors & Trustees Wisely
  8. Consider the formation of a Family Limited Partnership.
  9. Consider holding assets, which may harbor risk in an entity such as a corporation or Limited Liability Company.

Types of Trusts:

  • Revocable Living Trust
  • Credit Shelter Trust
  • Irrevocable Life Insurance Trust
  • Charitable Remainder Trust
  • Charitable Lead Trust
  • Family Gift Trust
  • Grantor Retained Annuity Trust
  • Qualified Personal Residence Trust
  • Dynasty Trust

desires after death. It is an instrument by which a person makes a disposition of his or her real and personal property which will take affect after death.  However, these intentions are entirely revocable prior to death. Today, most wills are formulated with a self-proving affidavit. The self-proving affidavit eliminates the formality of the proof of execution by the attesting witness.

Estate Tax

If you (or you and your spouse) expect that your estate may owe the tax, consider creating a AB trust or Bypass trust, that may save on federal estate tax. Otherwise, when the second spouse dies. His or her estate will include all of the couple’s property, but the second spouse will not have the advantage of the previously deceased spouse’s lifetime credit.

An AB trust, also known as a credit shelter trust, lets a couple pass the maximum amount of property to their children or other beneficiaries after both spouses die by utilizing the lifetime earned income credit.  This trust can also be designed to ensure the surviving spouse is financially comfortable during his or her lifetime.

Instead of leaving property outright to the surviving spouse, each spouse leaves most or all of his or her property to an AB trust. When one spouse dies, the surviving spouse can use that property, with certain restrictions, but doesn’t own it outright. The property isn’t subject to estate tax when the second spouse dies, because the second spouse did not own it.

When setting up an AB trust, each spouse names final beneficiaries who will receive the trust’s property when the surviving spouse dies. Spouses often name the same people — their children — as final beneficiaries, but it’s not mandatory

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