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In Estate Planning, General, Uncategorized

25 Documents to have before you die

25 Documents to have before you die

I ran across this Wall Street Journal list today and am reminded of how important it is to get certain life affairs in order.  The start of the new year is as good of a time as any.

Number one on their list should come as no surprise.  An original will is the most important document to keep on file.  If you don’t have a will and you do have kids, call a lawyer and make an appointment.  If you do have a will, pull it out and read it.  You may want to update certain provisions or maybe even remove certain beneficiaries who haven’t been as nice to you as you would like.

If you need help organizing your estate, call us.  There is no fee for our initial estate planning meetings.… Read the rest

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January 5, 2012
In Estate Planning

Law FAQ: What is a HEET?

Law FAQ: What is a HEET?

A HEET is a Health and Education Exemption Trust.  This time of year many clients are making gifts to their children and grandchildren.  They often forget that gifts in excess of the $13,000 annual gift tax exclusion amount will be subject to Tennessee gift tax and affect their Federal Estate Tax exemption amount.  However, gifts made for a beneficiary’s health or education paid directly to the provider of services or to the educational institution are statutorily exempt and do not count against the annual gift tax exclusion amount.  And there is a code section that specifically authorizes a trust for the beneficiary’s health and education, a HEET.

A HEET enables clients to make completed gifts to beneficiaries for qualified health or education expenses.  Gifts to HEETs are not limited to the annual gift tax exclusion amount.  HEETs can provide a powerful planning tool for parents or grandparents who want to provide for their younger beneficiaries’ health or education needs, and who don’t want to be limited to annual exclusion gifts, don’t want complexity of … Read the rest

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December 6, 2011
In Estate Planning

Who are my Beneficiaries? A critical question in planning for the future.

How does Property Pass to Beneficiaries?

Do you know who your beneficiaries are? When we ask clients this question, their first response is often quick and affirmative. However, we frequently discover through the estate planning process that the beneficiaries listed on our clients’ life insurance policies and retirement accounts are not who they think they are, nor are they the intended recipients of the property.

One of the most common misconceptions we see is how property passes at someone’s death.  Accounts that have beneficiary designations  pass to the beneficiary or beneficiaries named on the beneficiary designation form for that account regardless of what your will or trust says.  So, for example, if my Will says that everything passes to my spouse at my death, but my beneficiary form on my life insurance names my children as beneficiaries, my life insurance proceeds  pass to my children and not to my spouse. Here are some examples of accounts that typically designate beneficiaries:

  • life insurance
  • retirement accounts
  • transfer on death accounts (TOD)
  • payable on death accounts (POD)

Periodically Review Your Beneficiary

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November 15, 2011
In Estate Planning

Is Tennessee a Community Property State for Estate Planning?

Tennessee is NOT a Community Property State

Community property states such as California and Texas, permit assets to receive a step-up in basis to the current fair market value (FMV) at the death of the first spouse to die regardless of which spouse owns the assets.

Tennessee is a separate property state. This means that only the separate assets of the deceased spouse (titled in his or her name), or 1/2  of any jointly-owned property,  are entitled to a step-up in basis to the current FMV at the death of the first spouse to die.

Tennessee Community Property Act of 2010

But wait—this Act allows for ownership of assets in a Tennessee Community Property Trust.  Although this type of ownership of assets between a husband and wife is not always beneficial, it can provide a significant advantage in the right circumstances, especially for property with a very low tax basis.Provided the Trust meets certain requirements, the property owned by the Trust will be treated as community property.

Advantage

The most significant advantage of this type of ownership is … Read the rest

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November 1, 2011
In Estate Planning

Law FAQ: Can I Place My Assets in a Trust and Protect Them from My Creditors?

Law FAQ: Can I Place My Assets in a Trust and Protect Them from My Creditors?

Before 2007, if an individual created a trust under which he is a beneficiary, the assets of the trust were subject to the claims of his creditors. As a result, an individual could not protect his wealth from creditors and lawsuits while retaining control of his assets. With the passing of the “Tennessee Investment Services Act,” Tennessee has become one of a few states in the nation to enact legislation permitting the creation of self-created (self-settled) asset protection trusts.
The law allows this protection by permitting the individual to create a self-settled asset protection trust referred to as an “Investment Services Trust” (IST).

An IST is an irrevocable trust into which an individual transfers assets while retaining the following rights: ability to direct the investment of the IST assets; receive distributions of principal upon the discretion of the Trustee; live in a home owned by the trust; veto distributions to any other permissible beneficiaries; direct the distribution of the trust assets upon death to any one … Read the rest

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October 25, 2011
In Estate Planning

Capacity to Make a Will in Tennessee

Capacity to Make a Will in Tennessee

As an estate planning and probate lawyer, I’ve handled cases from time to time where a person’s capacity at the time he or she created a Will or Trust was an issue. The elderly have increasingly become targets for those looking to prey on their physical and/or mental weaknesses. Additionally, people are living longer, and Alzheimer’s and dementia are becoming more and more common. Given all these factors, it is likely to continue to be an issue, especially when a person of advanced age changes or attempts to change beneficiaries.

What is a Self-Proving Will?

In most cases, a Will prepared by a lawyer includes the statements of 2 witnesses and a notary so that the Will is what is referred to as “self-proving.”  If the Will is not self-proving, it must be “proven” after the person dies.  In any case where there are handwritten notations or the document is totally handwritten, capacity of the person making the Will must be established.

Standard for Testamentary Capacity to Execute a Will in

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October 20, 2011
In Estate Planning

Law FAQ: Can I Sell My House to My Children for $1 to Avoid Gift Tax?

Law FAQ: Can I Sell My House to My Children for $1 to Avoid Gift Tax?

Many clients and others have asked if they could sell their house to their children for $1 to avoid gift tax.  The short answer to that question is “no”.  Any transfer for less than fair market value to an individual is a gift.  For example, if the residence being gifted is valued by a real estate appraiser to be $100,000, and the residence is sold to children for $1; there will be a transfer subject to gift tax of $99,999!

Whether or not a transfer results in the payment of gift tax depends on several factors.  Under both Federal gift tax law and Tennessee gift tax law, each individual can gift up to $13,000 to each child without incurring a gift tax.  This is referred to as the Annual Gift Tax Exemption amount.  However, Federal law and Tennessee law differ on how gifts in excess of the Annual Gift Tax Exemption are taxed.

Federal law currently provides for an additional lifetime gift exemption amount of $5 million.  Any exemption … Read the rest

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October 18, 2011
In Estate Planning

Law FAQ: I’ve been named as Trustee of a trust….what do I do now?

Law FAQ: I’ve been named as Trustee of a trust….what do I do now?

The most important thing to remember when you step in as trustee is that these are not your assets.  You are safeguarding them for others:  for the grantor (if living) and for the beneficiaries, who will receive them after the grantor dies.  As a trustee, you have certain responsibilities.  For example:

-You must follow the instructions in the trust document.

-You cannot mix trust assets with your own.  You must keep separate checking accounts and investments.

-You cannot use trust assets for your own benefit (unless the trust authorizes it).

-You must treat trust beneficiaries the same; you cannot favor one over another (unless the trust says you can).

-Trust assets must be invested in a prudent (conservative) manner, in a way that will result in reasonable growth with minimum risk.

-You are responsible for keeping accurate records, filing tax returns and reporting to the beneficiaries as the trust requires.

But you can have professionals help you, especially with the accounting and investing.  You will … Read the rest

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September 29, 2011
In Estate Planning

Law FAQ: Why can’t I name my minor kids or grandkids as beneficiaries?

Law FAQ: Why can’t I name my minor kids or grandkids as beneficiaries?

You can certainly leave assets to your children and grandchildren if you do so correctly, and there are a number of options to choose from when planning for minor beneficiaries. The problem comes in when minor beneficiaries are not properly planned for, which usually occurs when a minor is named as a beneficiary on a beneficiary designation form (e.g. life insurance beneficiary or retirement account beneficiary) or outright in a will or trust (e.g. $15,000 to each of my grandchildren).

Why? Minors cannot legally hold property in their own name. An adult (custodian, trustee or guardian) must hold the assets for the minor’s benefit until the child reaches a certain age. In Tennessee, the legal age at which they can receive or own property directly is eighteen (18). In your estate plan, you can change the age at which you want them to receive the funds, but the minimum is eighteen. When a minor is named as a beneficiary or left an outright distribution in a will … Read the rest

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September 28, 2011
In Estate Planning

Law FAQ: What is living probate?

Law FAQ: What is living probate?

If you can’t conduct business due to mental or physical incapacity (dementia, stroke, heart attack, etc.), only a court appointee can sign for you – even if you have a will.  Remember, a will only goes into effect after you die.  Once the court gets involved, it usually stays involved until you recover or die and it, not your family, will control how your assets are used to care for you.  This public, probate process can be expensive, embarrassing, time consuming and difficult to end.  It does not replace probate at death, so your family may have to go through probate court twice!

In some cases, a durable power of attorney may prevent the lifetime probate process.  A durable power of attorney lets you name someone to manage your financial affairs if you are unable to do so.  However, many financial institutions will not honor one unless it is on their form.  If accepted, it may work too well, giving someone a “blank check” to do whatever the agent wants with your assets.  … Read the rest

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September 20, 2011