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FREQUENTLY ASKED QUESTIONS



Question: WHAT IS ESTATE PLANNING?

Establishing a plan for how your assets will be distributed upon death.  Proper estate planning addresses what happens to your investments, business interests, life insurance, employee benefits plans, real estate interests, and implements strategies to minimize potential estate taxes.  With your regard to your own personal well being an estate plan should provide for a trusted individual to honor your wishes regarding health care matters in the event you are incapacitated.



Question: WHAT IS MY ESTATE?

Your estate is made up of everything you own, including:

  • Real Estate 
  • Business Interests
  • Your interest in joint accounts
  • Retirement Accounts
  • Life Insurance policies owned by you
  • Trust property over which you have significant control



Question: WHAT DOCUMENTS TYPICALLY MAKE UP AN ESTATE PLAN?

While each scenario is unique,a typical Estate Plan may include the following attorney prepared documents:

  • Revocable Living Trust- this instrument when properly drafted allows you to control assets during life, have them managed during incapacity, and privately and efficiently transfer them to your chosen beneficiaries at death.
  • Certificate of Trust- document used to prove the existence of a trust. Usually provided to financial institutions in order to place assets into the trust. 
  • Pour-Over Will- a Will that directs money or property to an existing trust.
  • Durable Power of Attorney- this document grants another individual authority to act on your behalf during your incapacity.
  • Advance Health Care Directive- this document puts others on notice of your preferred medical treatment should you become permanently unconscious, terminally ill, or otherwise unable to communicate decisions regarding your medical treatment.



Question: WHAT IF SOMEONE CHALLENGES MY WILL?

A challenge to a Will is also known as a Will Contest.  These actions are not uncommon in a probate proceeding and may be costly to litigate.


In order for an individual to contest a Will they must have proper legal standing to raise the objection.  Challenges to a Will can arise for a variety of reasons valid or otherwise, but often occur if distribution schemes change following a revocation and redraft, or if children receive disproportionate shares under the Will. 



Question: I AM AN EXECUTOR, DO I GET PAID?

Executors are reimbursed for legitimate out of pocket expenses incurred resulting from the management and distribution of the estate.  Executors may also be entitled to statutory fees which are based on the gross probate estate. (See PROBATE COSTS)  



Question: IF I CREATE A REVOCABLE LIVING TRUST WILL I LOSE CONTROL OF MY PROPERTY?

Generally, the creation and placement of assets into a Revocable Living Trust will not affect your control over the assets.  So long as you are trustee of your trust,  mentally competent and alive you have total control over your assets.  It is not necessary to obtain a Tax Identification Number for your Trust because there are no income tax changes.  Most significant to this type of Trust is that it is revocable meaning it can be changed or completly revoked.  



Question: IF I TRANSFER MY HOME INTO MY TRUST CAN MY BANK ACCELERATE THE MORTGAGE?

So long as you continue to live in the home, Federal Law prohibits financial institutions from accelerating your loan because you have transferred the property into your Revocable Living Trust.  There is an exception, enacted as a part to the 1982 Garn-St. Germain Act that does not prohibit acceleration of the mortgage if the residential real estate is five dwelling units or larger.




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