Kent Larsson writes about the proper use of wills, advance directives, trusts, and other estate planning tools, and how how they play a vital role in you receiving proper medical care and helping you to preserve and pass on your assets to your loved ones.
Challenging a will may be easy. However, winning the suit isn’t.
When a will is written that results in granting what someone wants other than the testator, it is known as "undue influence," according to My Prime Time News 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.
An estate planning attorney can advise you in creating a will that fits your unique circumstances and follows your wishes.
Reference: My Prime Time News (Jan. 18, 2017) "Undue Influence."
It is a good idea to find out how a power of attorney will fit your unique circumstances.
Powers of attorney can be easily obtained online. However, some of the issues they create can be masked, according to MD Magazine in "Five Questions to Ask About Your Financial POA."
The problem is that form documents contain boilerplate language that might not work for everyone's unique situation. If you take care of an elderly parent, you will want to make sure that the general durable power of attorney authorizes the agent (you) to continue paying for ongoing care and to make investment decisions.
These problems can be overcome by hiring an estate planning attorney to craft your general durable power of attorney.
The attorney can assist your elderly parent to create a document that does what he or she needs done and that is not just boilerplate language.
An estate planning attorney can help you create plans that fit your unique circumstances and may include a power of attorney.
Reference: MD Magazine (Dec. 27, 2017) "Five Questions to Ask About Your Financial POA."
The new tax law has enough big changes that you need to review your estate plan to make sure that you are taking advantage of the best options in the new environment.
It is a good idea to review your estate plan with sufficient frequency to make sure it still does what you want in the most effective way. However, you should not wait to review your plans when something significant changes.
The significant change can be something in your life, such as a new spouse, a divorce, another child or a large increase in income. The significant change can also be a change in the legal environment, as is the case with the recently passed tax overhaul.
Many estate plans will need to be changed to take advantage of the new law as the Wills, Trusts & Estates Prof Blog discusses in "A Gift from the New Tax Act: Kill That Trust."
One of the key changes for estate planning purposes, is that the estate tax exemption has been doubled.
This means people with estate plans that created trusts for the sole purpose of limiting their estate tax exposure may want to revisit their plans. They might now be better off revising those trusts or even getting rid of them altogether.
Make sure that you visit an estate planning attorney before you make a decision about your trust on your own. The doubling of the estate tax exemption is scheduled to expire in the future, so you will also want an expert opinion about how you should handle that.
Reference: Wills, Trusts & Estates Prof Blog (Dec. 26, 2017) "A Gift from the New Tax Act: Kill That Trust."
A Tennessee woman has given birth to a baby, after the successful implantation of an embryo that was frozen 24 years ago.
The medical world is making advances in many fields, including all kinds of technologically enhanced pregnancy and birthing methods. Eggs, sperm and embryos can all be frozen today and used later to create a child.
A Tennessee woman has recently broken the record for successfully birthing a baby from an embryo that was frozen 24 years ago. That is the longest time on record for a successful birth to occur after an embryo was frozen. The embryo was frozen when the mother was only a year and half old. It came from her.
Why this was done when the woman was so young is not known.
CBS Baltimore reported on this story in "Woman, 26, Has Baby Born From Record Breaking 24-Year-Old Frozen Embryo."
This creates even more challenges for estate law, when it comes to posthumous births.
The length of time from when a person passes away to when the deceased person's biological child can be born keeps increasing. What should be done about previously administered estates, when a new child is born so long after death is not clear.
States that have addressed the issue have not all reached the same conclusions. It is something that will need to be addressed with increasing clarity, in the near future.
People who might have posthumous children should talk to an estate planning attorney about what they would like to happen in case they do have one.
Let the attorney include what you want done in your estate plan.
Reference: CBS Baltimore (Dec. 19, 2017) "Woman, 26, Has Baby Born From Record Breaking 24-Year-Old Frozen Embryo."
It might not be possible at this time to pass away and be brought back to life years later, but it could be some day. That could make estate planning challenging.
A relatively small group of people is determined to prove that human remains can be frozen and brought back to life later by scientists. If they are brought back to life, the theory is that scientists would cure such people of any diseases that led to their deaths.
The process is known as cryogenics.
Most experts say it is impossible. However, that has not stopped the believers. Many have made plans to have their bodies frozen and preserved after they pass away.
It is impossible to determine where medical science will go. Perhaps, it would be possible someday to bring the deceased back to life.
That could create challenges for tax authorities and estate planners as Wealth Management discusses in "Do Zombies Pay Taxes?"
One of the bigger questions is how the estate of a person who dies and is expected to come back to life later, should be taxed and distributed. Government will have to wrestle with whether the estate tax should apply.
For people planning their estates, the challenges are even greater. They will need to decide how much of their assets should be set aside for their own future life and how much should be distributed to their families who will need to survive in the interim.
These challenges are not insurmountable. They are not something most people need to concern themselves at this time. In the future, such estate planning challenges might be something for which people need to plan. Or perhaps not, if the experts are correct.
Reference: Wealth Management (Dec. 20, 2017) "Do Zombies Pay Taxes?"
Can a Wisconsin family be brought back to life in the future?
A man in Wisconsin has signed up for himself, his wife and their three sons to all be cryogenically frozen after they pass away, according to the Daily Mail in "Father spends $140,000 to sign his whole family up to be frozen in cooling chambers when they die, in the hope they can be woken up in the future, to have a 'second chance at life'."
Their hope is that someday scientists will be able to unfreeze them, bring them back to life and cure whatever it was they died from.
Most experts would say this is an impossibility because the freezing process damages the brain. However, those who support cryogenics have faith that future scientists can fix that.
Whatever your opinion of cryogenics and its potential effectiveness, you probably should think of death as still inevitable. You are going to pass away and perhaps your family can benefit from an estate plan now.
Reference: Daily Mail (Dec.18, 2017) "Father spends $140,000 to sign his whole family up to be frozen in cooling chambers when they die, in the hope they can be woken up in the future, to have a 'second chance at life'."
If you have assets in more than one nation, you need to be sure of the laws for a solid estate plan.
There are people who might need more than one will, if they have assets in more than one country and are a citizen of both countries, according to the Financial Review 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 of the nations where you own property. If that does not seem possible, then have separate estate plans for the property in each nation.
An estate planning attorney can advise you on creating an estate plan or plans based on your unique circumstances.
Reference: Financial Review (Sep. 20, 2017) "Double trouble for dual nationals."
It is best to consider all possibilities when making plans to protect your family.
In addition to creating your will and an estate plan, you might consider that while you are at the attorney's office you should also get plans for what might happen if you become incapacitated, according to the Times Herald-Record discusses in "Make plans in case you are incapacitated."
The issue is that if you are incapacitated, someone else needs the legal authority to act on your behalf.
Someone will need to be able to handle your bills and to make medical decisions for you, should it be necessary.
If you do not plan ahead, it can be a difficult process for someone else to get the legal authority.
Someone will have to hire an attorney and go to court to get a judge's permission to act as your guardian.
Fortunately, planning for what will happen if you become incapacitated is not difficult.
You just need a general durable power of attorney and a health care power of attorney.
An estate planning attorney can advise you on creating an estate plan that fits your unique circumstances.
Reference: Times Herald-Record (Dec. 12, 2017) "Make plans in case you are incapacitated."
State laws are similar, but differences can turn out to be important.
If you relocate to another state, it is important to revisit your estate plan because there are a number of variables that have an impact on the plan, according to The Times Herald 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.
It would be prudent to obtain the advice of an estate planning attorney in your new state of residence, in case your plan needs updating.
Reference: The Times Herald (Dec. 1, 2017) "Moving can affect your financial planning."
If your children inherit your retirement accounts, they will have options about what to do with them.
The Wills, Trusts & Estates Prof Blog discusses some of the options that heirs have when inheriting retirement accounts in "What Your Kids Can Do When They Inherit Your Retirement Accounts."
Most people designate their spouses as the beneficiaries of their retirement accounts. However, people sometimes name non-spouse beneficiaries, such as their children.
What the children can do with the accounts is not as simple as it is for spouses. However, there are a few options.
The options include:
• The assets in the account can be taken out immediately as one lump sum.
• The assets in the account can be taken out whenever needed, as long as the account is empty within five years.
• The children can choose to stretch the account out over their own expected lifetimes. They will need to make annual required minimum distributions and must take the first one by a set time.
An estate planning attorney can advise you on creating an estate plan that fits your unique circumstances and advise you on your retirement accounts.
Reference: Wills, Trusts & Estates Prof Blog (Nov. 22, 2017) "What Your Kids Can Do When They Inherit Your Retirement Accounts."