Trusts are normally used as part of an estate plan. Trusts help offer multiple benefits to the beneficiaries of a decedent upon death. Such as avoidance of probate as well as potentially avoiding payment of estate taxes. Benefits to the decedent include the ability to control how the trust assets are used even after death. But is it really possible to avoid probate?
CPLS is hosting a FREE webinar on FREE Webinar on Ethically Representing Clients under Disability & Evaluating Your Client. Join us on Friday, October 30th, 2020 at 12 p.m. via Zoom. The webinar will be hosted by Aubrey Ducker, Esq. Aubrey Harry Ducker, Jr. is a Partner in the Orlando office of CPLS, P.A. He is a member of the Firm’s Family and Elder Law Practice Groups.
CPLS is hosting a FREE webinar on Electronic Wills, Remote Notarization & Other Scary Things. Join us on Friday, October 16th, 2020 at 12 p.m. via Zoom. The webinar will be hosted by Hallie Zobel. Attorney Zobel has been a probate and estate planning attorney serving the Central Florida community for over 30 years.
CPLS is hosting a FREE webinar on Criminal Law and Immigration: How Criminal Activity Affects Immigration. Join us on Friday, October 9th, 2020 at 12 p.m. via Zoom. The webinar will be hosted by Evelyn J. Pabon Figueroa. Evelyn J. Pabon Figueroa is a Partner in the Orlando office of CPLS, P.A. She is a member of the firm’s Immigration, Criminal, and Bankruptcy groups.
When it comes to estate planning, one of the most important parts are knowing how you’ll divide your assets. You must take all things into consideration. Even if you are single and childless, there are still plenty of factors that play into estate planning. Regardless of whether or not you have any heirs or immediate family, everyone needs to have an estate plan. Without a proper plan in place, the state will figure it out for you. No one wants that to happen. If you want to know what you can do, read our guide on estate planning with no heirs.
Distributing a person’s assets after they die depends on the instructions left behind in a will or trust. In situations where instructions were not left, the state laws govern the distribution of property regardless of the desires a person may have expressed before passing away. A trust may be created during life, either as a revocable trust or an irrevocable trust.
Or a trust may be created under a Will. Regardless of the attributes of the instrument creating the trust, different sub-trusts may be created under the trust. If the assets start in the Will, the Will could name the revocable trust as the beneficiary, this is a “pour-over” Will. Or, the Will could set up trusts directly. If the assets start off in a trust, it may be called a Revocable Living Trust or some other name. There is no magic to the name of the trust. It just cannot be confusing or violate a copyright. Upon death, a temporary Administrative Trust may be created to pay expenses prior to splitting as directed by the instrument.
Trust litigation is where a Beneficiary or Trustee or even an heir of a Trust feel their legal rights are trampled upon and need legal counsel to represent them in court. Typically, the trust litigation is between the Trustee vs. the Beneficiary/ heir. Many issues can arise, and mostly due to transparency, the beneficiary feels the Trustee may be self-dealing. Self-dealing is where the Trustee puts their needs and wants before the Beneficiaries. Now, the Trustee knows they have the fiduciary duty to put everyone above their self-interest first and to comply with the wishes of the Trustor.
So, what happens to a living trust at death? Upon the death of the owner of a living trust, the successor trustee will take over. The first step is to contact the investment firm that is holding the living trust or the attorney representing the trust owner. They will have the necessary documents (the trust agreement) to begin executing the provisions of the trust.
If the trust holds real property, the next step is to bestow title in the successor trustee to ensure that the property will be handled according to the settlor’s wishes. An affidavit ought to be recorded with a certified copy of the death certificate against each real property held in a living trust.
This process transfers the property’s title from the deceased settlor to the new trustees. A change of ownership form is typically recorded simultaneously with the affidavit. If the trust transfers real property from parents or children by any means exempt from property tax reassessment, the trustee must complete the proper exemption form. An attorney is recommended to help prepare these documents.
A Pot Trust is a trust set up for several beneficiaries, typically children. The purpose of a Pot Trust is to keep the funds in one “pot” until a later event. For example, at the death of the parents, the assets may be kept in one pot until all the children have graduated from college or reached age 25. By doing this, parents can ensure that each child has enough to go get a good start in life.
Let us say that there are 2 children ages 18 and 22 at the death of the parents and there are $400,000 in assets. Assume that the 22-year old went to a school costing $50,000 per year and has now graduated. If the 18-year old went to the same school, without a pot trust, their entire inheritance would go toward their education. With a pot trust, once they are both out of college, the trust would split, and each would get $100,000. Once the pot trust terminates, the remaining balance could be distributed outright or in further trust.
Get the death certificate. You will need to get as many original death certificates when settling a trust after death based on how many bank accounts, properties, etc., you must receive the original death certificates. Contact Social Security if necessary. Many times, a check might need to be returned based on when the SSI check was received, after the death of the grantor.
Inventory Trust Assets. It takes time to collect all assets, documents, and control them, so no loss of assets occurs. Review Trust Investments: Depending on the number of investments can complicate matters. Many times, a financial advisor may be necessary to understand the ramifications of selling, reinvesting, etc.
Set up a Record-keeping system: Setting up bookkeeping is the foundation of the trust administration process. Identify all beneficiaries and heirs: To add to the time, the Trustee will need to contact the heirs and beneficiaries as to the status of the Trust process. There is a reasonable time frame; the Trustee must get back with the Beneficiary with answers. The above list is just a preview of the full breadth of steps of an accurately complete trust administration process.
What if the Beneficiary has been waiting for more than 18 months? If you are the Beneficiary, hopefully, you have been in the loop of the current standings. If not, then, you will need to start by gathering information like the following:
1. Copy of the Trust
2. Banking information
3. Asset updates
How Does the Trust End?
Depending on the terms of the trust, it may be dissolved after all the trust property has been distributed. But, if the terms call for something other than direct distribution to heirs, it may be necessary to maintain the trust for a period. For instance, the trust owner may have left money to a minor child which would require that the trust retain the funds until the child reaches the age of majority in the state of the child’s residence. If that is the case, the trustee will remain responsible for the trust until it is time to make the final distributions.
For better or worse, COVID-19 has impacted both relationships and marriages. In turn, it is not surprising that divorces during COVID-19 have been on the rise. The extended time spent at home with family has caused a lot of tension. In an unfortunate twist of fate, the quarantine has revealed a lot of incompatibility issues within married couples. Although some couples have been able to work through marital issues, not all couples have been that lucky. You may be wondering how feasible it is to get a divorce during the pandemic, especially if COVID-19 has impacted employment status and health issues. Even though COVID-19 has added an extra layer of consideration, it is still possible to get a divorce.
The probate process is used when loved ones die and they do not leave behind a will. Their assets are not immediately given out and their debts aren’t immediately paid off. Probate can last for years, and it can be a very costly and time-consuming process. It can be difficult to manage loved ones’ assets alone or even try to manage your own assets. Fortunately, there are resources available in assisting in the legal aspects. Attorney Aubrey Harry Ducker Jr. is offering this short guide on managing estate assets and how to get started.
Most people have assets and debts at the time of their death. An individual’s “estate” are the assets and liabilities that they have. Every US state has its own set of laws governing what to do with the estate. During probate, the decedent’s debts must be paid off, as well as any taxes they owe. Probate is used when the decedent did not leave behind a trust. Probate is typically a simple and straightforward process. However, there are circumstances where family members are able to dispute the validity of a will or object to the family member’s state of mind. When disputes occur, they need to be handled in a professional manner by an experienced attorney.
What is a living will and why is it necessary? Attorney Aubrey Harry Ducker Jr. shares his knowledge of elder law.
The process of probate begins by filing a will in probate court. If there are no disputes or objectification to the will, the named executor or personal representative will pay the debts of the estate and distribute leftover assets to any beneficiaries. Probate can take up between 3-8% of the total assets left behind in a will (excluding taxes). An experienced attorney will help to reduce of costs of probate in court. An attorney who specializes in probate administration can help resolve disputes or conflicts that may arise during the process.
Should I add my family member’s names on my assets and avoid a will? Attorney Aubrey Harry Ducker Jr. offers his perspective.
Having an account is beneficial for managing assets and it’s recommended that you open an account in the name of an estate or trust. A basic checking account can be enough to get you through the probate process. If the trust has to be managed over the long term, it is recommended that an account is set up to handle both investments and cash. This account will contain all the fund’s from the decedent’s bank accounts and income created by estate assets.
Managing A Decedent’s Assets
In order to apply for coverage, Medicaid has strict rules that require applicants to “spend down” their assets before they qualify for coverage. Individuals must be conscientious of what they spend money on. To be eligible for Medicaid, applicants must have no more than $2000 “countable assets”. A Medicaid applicant is able to spend money on the following:
What are some permissible ways to spend down my assets? In Medicaid planning, “spending down” assets are important. Working With An Attorney On Managing Estate Assets Estate planning is a serious business. One wrong word or missing signature can the intent and power of a will or trust.
An Attorney who specializes in probate or estate planning can assist in sorting out complex legal documents or matters. Your attorney can also sort out any family conflicts or objectification that may arise. Most importantly, estate planning attorneys understand the state law, which dictates estate plans. If you or a loved one are not familiar with Florida state laws, it could be difficult to navigate on your own.
We understand how simple estate planning mistakes or omissions can quickly turn into a disaster, resulting in litigation or probate. Aiming to help our clients avoid common estate planning errors. Thus protecting their assets. Affecting the efficient transfer of assets to the intended beneficiaries.
If you are dealing with any type of family law case, contact Attorney Aubrey Harry Ducker Jr. to discuss how our attorneys can help you with your Trust Administration & Litigation, Probate Administration & Litigation, and Collaborative Divorce case. Call us at (407) 647-7887 or send us a message. Also, you can visit the offices of Attorney Aubrey Ducker Jr. Aubrey Ducker Jr. serves Orlando and surrounding areas.
So far, COVID-19 has had a profound impact on a wide range of legal matters. Life and circumstances have changed for many different people while quarantining and social distancing. COVID-19 has also had an impact on employment in America. As a result, many Americans are grappling with the financial issues from the pandemic. Attorney Aubrey Harry Ducker Jr., along with attorneys at CPLS are going to examine alimony issues during the COVID-19 crisis.
Child custody and divorce law: Family law deals with issues that are family-related and issues of domestic relations. Most family law practices focus on representing clients within a divorce and the issues related to divorces such as the division of marital property, child custody and support, and alimony.
