The tools available to an estate-planning attorney are wills, trusts, powers of attorney, advance directives, contracts, and deeds.
Things we address are present and future beneficial interests, covering contingencies, and managing tax uncertainty.
All of these tools mentioned are designed to make it so legal problems, costs, family conflicts and headaches are minimized, if not avoided altogether.
In the game of golf, the winner has the lowest score.
In other words, they got through the course in the most efficient manner with the least number of strokes.
As is the case with golf, in the arena of estate planning, we are trying to avoid problems. Fortunately, it is not too difficult to be successful in this arena.
Those that try and configure their own solution based on something they read on the internet or what a friend of theirs told them are the ones that are likely to experience unintended negative consequences.
For instance, let’s say Mom survives Dad and basically inherits everything from Dad free of trust.
Okay, so that transfer might not have been too involved because the assets might have all been owned jointly with survivorship rights, or designated to go to the survivor.
So, Mom might think that she should just put one child (let’s call him Aaron) on the house and the accounts, and that child will “do the right thing” and make sure his siblings get their share. Well, this is an accident waiting to happen.
If Aaron is sued while Mom is alive, can Mom’s house and assets that she owns with Aaron be in jeopardy? Yes.
If Mom passes, and then Aaron gets divorced, can his wife get half? Yes.
If Mom passes and Aaron’s siblings plead with Aaron for their share, are they legally entitled to it? No.
There is a better way. Mom hires a lawyer and creates a Trust, and she makes it so she and Aaron are co-trustees and that Aaron can act alone while Mom is alive.
Mom wants Aaron to handle the bills so she makes him a co-trustee with the full authority to act. Mom’s trust directs Aaron to distribute the property to he and his siblings in equal shares, and she leaves it to them “in trust” so they can use the money but can’t lose it if they get sued. Now, under this better way….
If Aaron is sued while Mom is alive, can Mom’s house and assets that she owns with Aaron be in jeopardy? No.
If Mom passes and then Aaron gets divorced, can his wife get half? No.
If Mom passes and Aaron’s siblings plead with Aaron for their share, are they legally entitled to it? Yes.
Isn’t that better?
Mark F. Winn, J.D., Master of Laws (LL.M.) in estate planning, is a local asset protection, estate planning and elder law attorney. www.mwinnesq.com