Estate Planning Flyer: How a living trust might help you.

Video Post: What is a Trust? What is a Living Trust?

A short video to tell you the basics.

Lawyer Kigan Martineau | Featured Attorney Personal Injury

What is a Trust?

A trust can help you reduce your taxes, protect your assets from creditors, and completely avoid otherwise mandatory court processes, yet 90% of the people I talk to everyday have no idea what a trust is.

Most people think that a Will is good enough estate planning. IT IS NOT! Never stop your estate planning at a Will. It is a good start, but it is far from a COMPLETE estate plan.

Although a Will is generally cheaper to create than a Trust, there are many pitfalls of a Will. For example: A Will requires you to go through those mandatory court processes that a Trust keeps you out of: Probate. 

Watch this video to understand exactly "What is a Trust?" By understanding how simple it is to create a Trust, hopefully, you will no longer be scared to create one.

How to Leave your IRA to your Family

THE BASICS
Your IRA is not covered by a will. Instead, specific designation forms govern where the funds go. (these recipients are called the beneficiaries) You generally fill out these forms when you open an IRA account. 

NOW is a good time to make sure all your beneficiary forms are up to date. For example, if a family member married or divorced, or had children or grandchildren, you should amend the beneficiaries. 

•      HOW? - Simply ask your financial company for a beneficiary amendment form. REMEMBER - For IRAs, you can name any beneficiary you want, including friends, family members, a trust or charity. But, for a 401(k), your spouse must give written permission if you leave it to anyone else besides him/her. 

A COMMON MISTAKE YOU SHOULD NEVER MAKE--- 

Do Not name your estate as your beneficiary! Doing so will cost you more taxes. You will have to withdraw all funds in the IRA within five years. You will also lose nearly all of the tax benefits that are exclusive to IRAs.

•    The reason this can happen to you, is that usually default beneficiaries are the owners' estates. So if no beneficiary form is filed or the initial beneficiary cannot inherit and no alternate is named, your estate will be the default beneficiary. Make sure your beneficiaries are up to date so this does not happen.

We all make mistakes.

NAMING THE BENEFICIARIES?

Stretching-Out your IRA. Your beneficiaries can elect to draw out the minimum required distributions over their own expected life spans. This is known as the stretch-out.  The Stretch-Out can extend the tax advantages of an IRA. 

The benefit comes in the extra years of income-tax-deferred growth in a traditional IRA or tax-free growth in a Roth IRA. 

Remember, the more that stays in the IRA, the more it will earn! This is important because the minimum required distributions are based on life expectancy. The longer the life expectancy, the smaller the distribution. (aka more money left in the IRA growing)

So, Stretching-Out your IRA means your beneficiary will elect to leave more money in the IRA, which grows tax-free.

Per Stirpes? This is a legal term. When selected, it means that the IRA will be distributed to your children evenly AND if one were to pass away, their children (your grandchildren) would receive their share. By not selecting per stirpes, the deceased child's share would be divided among the other beneficiaries (your children). (For Example: If I had 3 children, A, B, and C. Lets say that C passes away. Under Per Stirpes, A would get 1/3, B would get 1/3, and C's children would share 1/3. However, without Per Stirpes, A would get 1/2 and B would get 1/2.)

Naming a Trust as Beneficiary? There are good reasons for naming a trust as the beneficiary. If you have minor children, you should always consider naming your trust as your beneficiary. By doing so, the funds would be sheltered from creditors. Also, the funds would be distributed at certain times throughout the child's life (rather than all at once allowing them to squander it), and spendthrift provisions can ensure financial support for the children when needed until he achieves a certain age. 

A trust can also force the beneficiaries to take advantage of the Stretch-out of the IRA. However, make sure that your trust qualifies as a designated beneficiary, otherwise, the trust will have to take the money within five years of distribution. 

Once you have completed the forms, it would be wise to consult an estate-planning lawyer to look it over.  They can coordinate your retirement accounts with the rest of your estate plan. 

I hope this post has helped you with your IRAs' beneficiary plan. 

For more information, check out these well written articles (sources). 

Paul Walker's will teaches us the importance of updating.

Paul Walker's mother, Cheryl Ann Walker, filed paperwork on March 20th to become the legal guardian of Paul's daughter, Meadow Walker, and to oversee the estate he left the 15-year-old, valued at $25 million. But, Paul Walker's ex-girlfriend is set to dispute the guardianship.

WHY?? Paul Walker had a Will, right? That declared his mother the guardian, right? So why is the ex-girlfriend able to dispute that will? ----- Two words: Changed circumstances.

Paul Walker's will was executed over 14 years ago. Even though his will is still valid, there is a possibility for revocation by law.

Revocation by law typically occurs when any of 3 things happen: 

             1. Marriage
             2. Divorce
             3. New Children

When any one of these things happen, the court is allowed to consider the Will revoked in part or in full. The rationale behind this is based upon the general testator's intent. Meaning, most people want their will to include their spouses or new children, and most people don't want their ex-wives included in their will. 

In this case, Paul Walker's will does not fall under any of these typically followed situations, but it lands fairly close to marriage. 

In a world where marriage is becoming less common and domestic partners are becoming more common (with many states treating gay and lesbian couples in civil unions as married for these purposes), the court could entertain the argument of why this situation is a "changed circumstance" that justifies a revocation by law. 

Also, timing is an issue here. The court cannot overlook the fact that the will was created over 14 years ago. That's about the same time he gave the world She's All That, and Varsity Blues. A lot has changed over 14 years in all our lives, and especially in Paul Walker's. One of those significant changes is his relationship with his daughter and with his now ex-girlfriend. 

Ultimately, Paul Walker's ex-girlfriend is unlikely to win guardianship over his daughter for two reasons:

   1. The only window into Paul Walker's intent for his daughter is his Will that he created 14 years ago. Even if it is outdated, the court will be reluctant to throw out their only window.

   2. Even if the court revoked the Will, Paul Walker's mother would still likely receive guardianship. Revocation would force Paul Walker into intestacy. Being intestate, the guardianship of his daughter would follow statutory appointments, and guess who would receive the guardianship under the statutory appointments? --- That's right. The parents. 

So, rest assured Mrs. Walker, your granddaughter will be under your protection, and thank you for teaching us all to update our Wills. 

If any of those three things (marriage, divorce, or newborn child) has happened to you, update that Will. 

About and Disclaimer

This is a very simple informational Blog on estate planning. Most importantly, I am not your lawyer.  Please enjoy and feel free to post interesting insights.

Disclaimer: Some of these posts contain legal information, but I am not your lawyer. Take these posts for what they are: information to fill your canteen of knowledge, not legal counsel.

Moms and Dads, this is WHY you need a Will or Trust!

     

If the Dark Lord were to apparate in front of you one day and be like "yo, I want your sneakers... AVADA KEDAVRA!!" You would most likely pass onto the other realm and lose your sneakers (unless you have wizarding powers). But have you thought about what would happen to your child or children?

Well, there are three common possibilities:

1) Court Appointed Guardianship
          If you do not have a Will or Trust set up, the state court system (a.k.a. the Ministry) will actually select a person to be the legal guardian of your child. Thats right! A white-haired Cornelius Fudge will choose where your baby goes!
     
The court's appointment system is designed to work in the best interest of you, the deceased. So, the court will usually follow statutory successions of Guardianship appointment. (meaning that your parents or your siblings could be the guardians).
       
The cons are, well, you don't get to select a guardian for your children or talk to those people about taking care of your child. So, if you have estranged siblings or parents, your child could end up them. Who knows, they could actually be a portly family obsessed with self-indulgence (not unlike the Dursley's).
     
 Also, a BIG ALSO, if the court appoints a guardian, every time that guardian wishes to make a decision concerning the relationship with the child or his inherited property, the guardian must seek court approval. This means you spend much more money in the long run because the court will charge court costs for every visit.

2) Court Appointed Conservatorship
       This possibility has the same pros and cons as the appointed Guardianship; however, there is one difference: The appointed Conservator does not have AS MUCH court involvement. So, once the court appoints someone, that person will be able to do as he pleases with the future of the child with little interference from the courts. Which means little long term court costs.

3) Will or Trust Appointment
     When you create a Trust or Will, you are able to lay out your complete and total wishes for your child. You can select the guardian and instruct the manner in which you wish the guardian to raise your precious bundle of joy.  Also, that person (hopefully someone you trust and love) will be free from court costs and interference when abiding by your wishes.
   
This guardian owes a fiduciary responsibility to the child and to your wishes. Meaning that the guardian has to act in your child's best interests in accordance with the purpose of your trust. There is no reason not to do this option.

So, before you are confronted by He-Who-Must-Not-Be-Named, or something else equally deadly, plan ahead for your child. Make sure your little Harry Potter gets the best future possible - Set up your Will or Trust.   ;)