King & Wood, P.A.

What are the Stages of Probate?

“Although most assets in your estate may pass through the probate process, other assets may not. It often depends on the type of asset or how an asset is titled.”

Probate is a court-supervised process occurring after your death. It takes place in the state where you were a resident at the time of your death and addresses your estate—all of your financial assets, real estate, personal belongings, debts and unpaid taxes. If you have an estate plan, your last will names an executor, the person who takes charge of your estate and settles your affairs, explains the article “Understanding Probate” from Pike County Courier. How exactly does the probate process work?

If your estate is subject to probate, your estate planning attorney files an application for the probate of your last will with the local court. The application, known as a petition, is brought to the probate court, along with the last will. That is also usually when the petitioner files an application for the appointment of the executor of your estate.

First, the court must rule on the validity of the last will. Does it meet all of the state’s requirements? Was it witnessed properly? If the last will meets the state’s requirements, then the court deems it valid and addresses the application for the executor. That person must also meet the legal requirements of your state. If the court agrees that the person is fit to serve, it approves the application.

The executor plays a very important role in settling your estate. The executor is usually a spouse or a close family member. However, there are situations when naming an attorney or a bank is a better option. The person needs to be completely trustworthy. Your fiduciary will have a legal responsibility to be honest, impartial and put your estate’s well-being above the fiduciary’s own. If they do not have a good grasp of financial matters, the fiduciary must have the common sense to ask for expert help when needed.

Here are some of the tasks the fiduciary must address:

• Finding and gathering assets and liabilities
• Inventorying and appraising assets
• Filing the estate tax return and your last tax return
• Paying debts, managing creditors and paying taxes
• Distributing assets
• Providing a detailed report of the estate settlement to the court and any other parties

What is the probate court’s role in this part of the process? It depends upon the state. The probate court is more involved in some states than in others. If the state allows for a less formal process, it’s simpler and faster. If the estate is complicated with multiple properties, significant assets and multiple heirs, probate can take years.

If there is no executor named in your last will, the court will appoint an administrator. If you do not have a last will, the court will also appoint an administrator to settle your estate following the laws of the state. This is the worst possible scenario, since your assets may be distributed in ways you never wished.

Does all of your estate go through the probate process? With proper estate planning, many assets can be taken out of your probate estate, allowing them to be distributed faster and easier. How assets are titled determines whether they go through probate. Any assets with named beneficiaries pass directly to those beneficiaries and are outside of the estate. That includes life insurance policies and retirement plans with named beneficiaries. It also includes assets titled “jointly with rights of survivorship,” which is how most people own their homes.

Your estate planning attorney will discuss how the probate process works in your state and how to prepare a last will and any needed trusts to distribute your assets as efficiently as possible.

Reference: Pike County Courier (March 4, 2021) “Understanding Probate”

How to Manage a Will and Trust

“By definition, a Will accounts for a person’s wishes of how their assets and estate should be distributed and handled once they die. It spells out who should get what and who should do what, after the benefactor’s demise.”

A last will and testament is used to point out the beneficiaries and trustees and the legal professionals you want to be involved with your estate when you have passed, explains this recent article “What You Need To Know About Handling a Will and Trust from Your Dearly Departed Loved One” from North Forty News. If there are minor children in the picture, the last will is used to direct who will be their guardians.

A trust is different than the last will. A trust is a legal entity where one person places assets in the trust and names a trustee to be in charge of the assets in the trust on behalf of the beneficiaries. The assets are legally protected and must be distributed as per the instructions in the trust document. Trusts are a good way to reduce paperwork, save time and reduce estate taxes.

Don’t go it alone. If your loved one had a last will and trust, chances are they were prepared by an estate planning lawyer. The estate planning attorney can help you go through the legal process. The attorney also knows how to prepare for any possible disputes from relatives.

It may be more complicated than you expect. There are times when honoring the wishes of the deceased about how their property is distributed becomes difficult. Sometimes, there are issues between the beneficiaries and the last will and trust custodians. If you locate the attorney who was present at the time the last will was signed and the trusts created, she may be able to make the process easier.

Be prepared to get organized. There’s usually a lot of paperwork. First, gather all of the documents—an original last will, the death certificate, life insurance policies, marriage certificates, real estate titles, military discharge papers, divorce papers (if any) and any trust documents. Review the last will and trust with an estate planning attorney to understand what you will need to do.

Protect personal property and assets. Homes, boats, vehicles and other large assets will need to be secured to protect them from theft. Once the funeral has taken place, you’ll need to identify all of the property owned by the deceased and make sure they are property insured and valued. If a home is going to be empty, changing the locks is a reasonable precaution. You don’t know who has keys or feels entitled to its contents.

Distribution of assets. If there is a last will, it must be filed with the probate court and all beneficiaries—everyone mentioned in the last will has to be notified of the decedent’s passing. As the executor, you are responsible for ensuring that every person gets what they have been assigned. You will need to prepare a document that accounts for the distribution of all properties, which the court has to certify before the estate can be closed.

Taking on the responsibility of finalizing a person’s estate is not without challenges. An estate planning attorney can help you through the process, making sure you are managing all the details according to the last will and the state’s laws. There may be personal liability attached to serving as the executor, so you’ll want to make sure to have good guidance on your side.

Reference: North Forty News (Feb. 3, 2021) “What You Need To Know About Handling a Will and Trust from Your Dearly Departed Loved One”

 

Homeownership and Medicaid Can Be Problem

 

“Many people work hard to acquire real estate and then later find that that real estate makes them ineligible for Medicaid to help pay for nursing home or in-home, long-term care.”

The challenges begin when homeowners don’t do any Medicaid planning and decide the best answer is simply to gift their home to their children. It doesn’t always work out well for the homeowners or their children, warns the article “Owning real estate without jeopardizing Medicaid paying for nursing home” from limaohio.com.

A key tax avoidance opportunity is usually missed, when real property is gifted outright. The IRS says that if someone owns real estate, when that person passes, the heirs may eliminate a large portion of the taxable gains, if the real estate ends up being sold by an heir for more than the original owner paid for the property.

Let’s walk through an example of how this works. Let’s say Terry buys a farm for $1,000. The cost to buy the farm is referred to as a “tax basis.”

If the family is planning for the possibility of nursing home costs, Terry might want to give that farm away to her children Ted and Zach. She needs to do it at least five years before she thinks she’ll need Medicaid to pay for long-term nursing care, because of a five-year lookback.

When Terry gifts the farm to Ted and Zach, the two children acquire Terry’s tax basis of $1,000. Ted gets $500 of the tax basic credit, and so does Zach.

The years go by and Ted wants to buy out Zach’s half of the farm. The farm is now worth $5,000. So, Ted pays Zach $2,500 for Zach’s half of the farm. Zach now has a tax basis of $500, which is not subject to tax. And Ted receives $2,000 more than his $500 tax basis, and Ted will need to pay capital gains on that $2,000 gain.

It could be handled smarter from a tax perspective. If Terry owns the farm when she dies, then Ted and Zach get the farm through her will, trust or whatever estate planning method is used. If the farm is worth $3,000 when Terry dies, then Ted and Zach will get a higher tax basis: $3,000 in total, or $1,500 each. By owning the farm when Terry dies, she gives them the opportunity to have their tax basis (and amount that won’t be taxed if they sell to each other or to anyone else) adjusted to the value of the property when Terry dies. In most cases, the value of real estate property is higher at the time of death than when it was purchased initially.

There’s another way to transfer ownership of the farm that works even better for everyone concerned. In this method, Terry continues to own the farm, helping Zach and Ted avoid taxes, and keeps the property out of her countable assets for Medicaid. The solution is for Terry to keep a specific type of life estate in the farm. This needs to be prepared by an experienced estate planning attorney, so that Terry won’t have to sell the farm if she eventually needs to apply for Medicaid for long term care.

Your estate planning attorney will be able to help you and your family navigate protecting your home and other assets, while benefiting from smart tax strategies.

Reference: limaohio.com (Nov. 7, 2020) “Owning real estate without jeopardizing Medicaid paying for nursing home”

The Biggest Mistake in Trusts: Funding

 

 

 

 

                                                    "Your real estate holdings, life insurance, bank accounts and retirement savings won’t magically flow into your trust.”

Failing to put assets into trusts creates headaches for heirs and probate hassles, says the article “Once You Create a Living Trust, Don’t Forget to Fund It” from Kiplinger. It’s the last step of creating an estate plan that often gets forgotten, much to the dismay of heirs and estate planning attorneys.
Are people so relieved when their estate plan is finished, that they forget to cross the last “t” and dot the last “i”? Could be! Retitling accounts is not something we do on a regular basis, and it does take time to get done. However, without this last step, the entire estate plan can be doomed.
Here are the steps that need to be competed:
Check the deeds on all real estate property. If the intention of your estate plan is to place your primary residence, vacation home, timeshare or rental properties into the trust, all deeds need to be updated. The property is being moved from your ownership to the ownership of the trust, and the title must reflect that. If at some point you refinanced a home, the lender may have asked you to remove the name of the trust for purposes of financing the loan. In that case, you need to change the deed back into the name of the trust. If your estate planning attorney wasn’t part of that transaction, they won’t know about this extra step. Check all deeds to be certain.
Review financial statements. Gather bank statements, brokerage statements and any financial accounts. Confirm that any of the accounts you want to be owned by the trust are titled correctly. You may need to contact the institutions to make sure that the titles on the statements are correct. If there is no reference to the trust at all, then the account has not been recorded correctly and changes need to be made.
It’s also a good idea to review any accounts with named beneficiaries. Talk with your estate planning attorney about whether these accounts should be retitled. The rules regarding beneficiaries for annuities changed a few years ago, so naming the trust as a beneficiary might not work for your estate plan or your tax planning goals as it did in the past.
IRAs and other retirement accounts. These accounts need to be treated on an individual basis when deciding if they should have a trust listed as a primary or contingent beneficiary. Listing a trust as a beneficiary can, in some cases, accelerate income tax due on the account. If the trust is listed as the beneficiary, the ability to distribute assets to trust beneficiaries may be impacted.
The main reason to list a trust as a beneficiary to an IRA or retirement plan is to protect the asset from creditors, financially reckless heirs, or a beneficiary with special needs. An estate planning attorney will know the correct way to handle this.
Making sure that your assets are in the trust takes a little time, but it is up to the owner of the trust to take care of this final detail. The estate planning attorney may provide you with written directions, but unless you make specific arrangements with the office, they will expect you to take care of this. The assets don’t move themselves – you’ll need to make it happen.
Reference: Kiplinger (Oct. 26, 2020) “Once You Create a Living Trust, Don’t Forget to Fund It”

Can Mom Leave a Home to Daughter but Not Grandchildren?

“If you want a legal plan that avoids probate court, there are two options: first, an enhanced life estate deed, and second a living trust. Each has its pros and cons.”

There are numerous ways to accomplish distributing property, according to specific wishes. A woman with three grown daughters faced a problem about passing down the family home. She wanted to give it to the youngest daughter, who has taken care of and is closest to her. However, she also wanted to be sure that, if something happened to this daughter, the house would go to her two other daughters and not the close daughter’s adult children.

With proper planning, this can be done, as described in the article “Mom needs contingency plan to pass house title” from mySanAntonio.

One way is to rely on a last will and testament. The will would state that she leaves the house to the youngest daughter, under terms of a testamentary trust inside the will. The daughter is permitted to use, enjoy, and live in the house during her lifetime, as the beneficiary of the testamentary trust.

The two older daughters would be named as the secondary beneficiaries of the trust. When the younger daughter dies, the trust distributes the house to the older daughters.

The plan will need to be prepared by a qualified estate planning attorney and it will likely be probated. This is not a terrible process, if the will is professionally written, properly signed by the mother and two witnesses, includes an executor and a trustee and clear instructions about her wishes. An estate planning attorney can prepare it correctly.

If the goal includes avoiding probate, there are other options. One is an enhanced life estate deed, and another is a living trust. The enhanced life estate deed specifies that the woman is retaining a life estate, that is, the right to use, enjoy and occupy her home, for the rest of her life. The document specifies that when she dies, the home goes to her youngest daughter. The owner would also want to specify that she has the right to change her mind at any time.

This approach avoids probate. However, there is a downside. If the youngest daughter dies before the mother, then the mother will need to take legal action to cancel the deed and issue a new one to the two older daughters. If the daughter outlives her mother, once she inherits the house, there will be no way to have it transferred to the other sisters in the future (unless the daughter choses to do so).

A living trust provides the detailed control allowed in a will, but the trust, which must be properly created and funded, avoids going to probate. The trust would let the mother live in the home, and when she dies, the title to the house stays in trust with her youngest daughter, who is able to live in the house. However, she never becomes the owner of the house. The trust would continue to own the house. The trust would specify that when the daughter dies, the house goes to the two older daughters. To be extra safe, it should also specify what she would want to happen, if one or both of the older daughters dies.

None of these is simple, but they are all feasible. Speak with an experienced estate planning attorney.

Reference: mySanAntonio (June 8, 2020) “Mom needs contingency plan to pass house title”

 

Please Welcome Megan Hance!

We are pleased to announce that Megan Hance has joined our firm as a closing specialist. Megan comes to us with an extensive banking background. She worked in commercial lending for a year and a half and residential lending for two years. In her free time, she likes spending time with her family. She also enjoyed reading, cooking, and as a native Ohioan, cheering on the Ohio State Buckeyes during college football season.

Welcome Caroline Palmer!

We are pleased to announce that Caroline Palmer has joined our firm as Front Desk Coordinator.  Caroline will administer our client intake and scheduling processes. 

Caroline is a 2019 graduate of Florida State University, where she completed a B.A. in History with a minor in English.  A native of Live Oak, Florida, Caroline enjoys taking her dog, Jack, to the park, spending time with family and friends, and travelling when she can.  Caroline plans to continue her education by pursuing a master’s degree in Library and Information Sciences.

 

Welcome to the firm, Caroline!

Why Should I Buy a Home with a Real Estate Trust?

“When you buy a home, you have the option of buying the home in a trust. Why should you choose to purchase a home in a trust? By getting a property in a trust, you hold the property for your benefit and the benefit of whomever you decide to own it after you.”

If you place your home in a trust, you become the trustee of the property. When you die, your successor then becomes the trustee.

Being the trustee of a property gives you certain powers over where your home will pass once upon your death. It can also enable you to shield your estate from future economic problems, says Investopedia in the recent article, “Buying a Home in Trust.”

First, decide who will have the legal right to sell the home. Then, you need to determine what type of trust to set up for the estate. Let’s look at the two basic types: the revocable trust and the irrevocable trust.

A revocable trust is an agreement that establishes the rights and heirs of the estate. The owner of the trust has full control at all times and can change it, when he or she wants. Based upon the way in which you set up the documents, all or one of the future trustees can also change the document at any time. Revocable means “capable of being canceled.”

In contrast, an irrevocable trust generally doesn’t allow any changes or terminations of the trust without permission of the beneficiary. The trustee acts more like a fiduciary who’s charged with maintaining the assets for the beneficiary. Irrevocable trusts can protect assets from creditors, if the assets were placed in the trust before the credit problems.

Whether creating a revocable or an irrevocable trust, it’s important to work with an experienced estate planning attorney. However, it is important to be aware of how putting a home may impact your eligibility for Medicaid, if that may be a future issue.

Buying a home in a real estate trust can give you and your beneficiaries advantages that otherwise wouldn’t be available.

Reference: Investopedia (October 13, 2018) “Buying a Home in Trust”

Life Estate Questions Answered

“With a life estate, there are two types of property owners.”

A recent article in USA Today, “Estate planning: Consider a life estate deed,” explains that a life estate is a way to transfer real estate to your beneficiaries during your lifetime.  However, it still allows you to keep the right to use and/or live on the property for the rest of your life. This simple process has some tax advantages, and it’s a way to avoid probate on the real estate.

The life tenant has the exclusive right to use the property during his or her lifetime. In many cases, this is a joint life tenant, like a husband and wife. The life tenant must maintain the property and pay the taxes and insurance. The remainderman has the exclusive ownership rights and responsibilities after the life tenant(s) die. At that point, the full ownership automatically transfers to the remainderman—without any probate or court filings. At this point, there’s what’s known as a full step up in basis, which provides capital gain tax advantages to the remainderman.

If a property is sold when there is a life tenant, both the life tenant and the remainderman must approve the sale. If both parties agree to the sale, then the life tenant will get a percentage of the sale proceeds (based on the life tenant’s age) and the remainderman will receive a percentage of the proceeds.

It is important to note that there may be an issue for the life tenant, if he or she is receiving or planning to qualify for Medicaid benefits. An estate planning attorney can help plan the sale properly, so the proceeds may not need to be spent down on the cost of care.

Life estates were used in the past as a way to protect real estate from potential long-term care costs and to keep control over the real estate during one’s lifetime. After five years lapsed from the transfer date, prior to applying for Medicaid, the property was protected from the cost of care. When applying for Medicaid for long-term care costs, the state usually wouldn’t calculate a life estate as an available asset.

However, some states have passed laws providing that all life estates created on or after a certain date are thereafter subject to estate recovery. This means that upon the death of a person receiving Medicaid benefits, the state could recover a percentage of the value of the life estate property, with the percentage determined by the age of the Medicaid recipient at the time of death. In these states, a life estate deed wouldn’t be the best way to preserve real estate from the cost of potential long-term care.

Life estates aren’t the best solution for everyone. Talk with an experienced estate planning attorney to determine the best ways to achieve your goals.

Reference: USA Today (February 27, 2017) “Estate planning: Consider a life estate deed”

Is Protecting Homes with Trusts a Good Idea?

“The key to any kind of asset protection planning, is that it must take place well before the need to be protected arises.”

The owner of a California townhouse in a homeowner’s association should examine his or her escrow documents, title report, property deed and the association’s governing documents, rather than relying just on the physical appearance of the property to know exactly what type of property was purchased. This is according to a recent article in The Los Angeles Times, “Trusts aren't a surefire way of making your HOA property judgment-proof.” The owner might want also to ask about placing real estate assets into a family trust to protect against future lawsuits with the HOA.

There are several legal distinctions between condominiums and Planned Unit Developments (PUDS)—the ownership of common areas is one of the most cited.  However, whether a townhouse or a single-family dwelling is part of a PUD or condo development, both are deed-restricted properties subject to homeowner associations regulated by California’s Davis–Stirling Common Interest Development Act in the California Civil Code. A power reserved for the board of all common interest developments is the right to place a lien on the property of an owner who violates the covenants or fails to pay on some association-related debt. The lien lets the board foreclose on and take that property to satisfy the debt.

This is tough for estate planning, because if a lien is applied to the property and the owner passes away, the estate can be attached. This keeps the property from passing to the owner’s heirs until any outstanding debts are paid.

Unfortunately, the most commonly used trusts won’t protect these assets.

Revocable Trusts

When folks talk about a “family trust” or “living trust,” they usually mean a “revocable trust.” This is where the grantors maintain ownership and control over their property during their lives. At death, the control goes to a trustee who then further administers or distributes the assets without having to go through probate. These trusts are “revocable” because the grantors can make changes to the terms, distribute assets early and even revoke the whole deal.  However, the assets in the trust are still subject to taxes and are not protected from creditors, litigation or foreclosure both during the lifetime and after the grantor’s death.

Irrevocable Trusts

By contrast, irrevocable trusts provide the creditor protection to the grantors, but only if they’re created for legitimate estate planning purposes. However, in an irrevocable trust, the grantors give up control over the assets placed in that trust—they can’t amend nor revoke the trust during their lifetimes. When the trust is created, the grantors must choose who they want to have their property when they die. That decision can’t typically be changed, and real property can be difficult or impossible to sell or refinance while it’s in the trust.

While there is no foolproof way to protect residential deed-restricted property from litigation with an HOA, especially property that is rich in equity, the key to any asset protection planning is to do this long before the need to be protected arises.

Reference: Los Angeles Times (February 4, 2017) “Trusts aren't a surefire way of making your HOA property judgment-proof”