Common misconceptions in estate planning

Having an estate plan in place is crucial for new parents, regardless of age or wealth. Read our blog to learn why they should consider estate planning.

Losing a loved one is already challenging, and navigating probate after their death can cause even more stress. Read our blog to learn how to navigate probate.

Common estate planning errors include going without a plan, failing to keep a plan current, choosing inadvisable fiduciaries and overlooking contingencies.

These frequently asked questions about estate planning could address some of your concerns about this important process. When it comes to estate planning, most people have questions. Some may wonder if it’s necessary at all, particularly if they have a more modest estate, while others may be unsure about what options there are to meet their estate planning needs. Still others might want to know how to handle special situations like naming guardians for their children. No single article will adequately address all the concerns you may have about estate planning, but these commonly asked estate planning-related questions can help get you started. To learn more about protecting your assets and providing for your loved ones, contact the experienced estate planning attorneys at the Las Vegas law office of Escobar & Associates Law Firm, Ltd. Q. Do I need an estate plan? A. Simply put, yes. Even if you aren’t wealthy, having at least a basic will can still protect your assets from state and federal estate taxes and might help your loved ones avoid the probate process. Wills are also helpful to set aside individual assets for children of previous marriages and to make specific bequests to loved ones or charitable organizations. Q. How is a trust different from a will? A. Whereas a will is an expression of your intent when it comes to your assets and last wishes, a trust is a legal vehicle used to protect those assets and provide terms under which the assets will be distributed. For example, your will may state that you want your oldest child to inherit your share in the family business. A trust could be set up that, in the event you pass away before your child is old enough to take control of the business, transfers your interest to your child once he or she reaches age 21. Q. What is probate, and why would you want to avoid it? A. Probate is a specific legal process designed to handle estate-related matters. Probate courts are responsible for administering wills and trusts, handling will contests, deciding trust litigation and making determinations on other key issues. In general, probate can be a time-consuming and exacting process, with even basic estates taking 120 days or more to complete. Larger, more complicated estates can take months or even years, and can involve much more time and money. Q. How can I name a guardian for my children or special needs loved ones? A. The estate planning process isn’t just about assets. Estate planning tools can be used for other purposes as well, such as setting out terms for guardianship of children or vulnerable adults. Guardianship is the process by which someone is assigned to provide care for and make decisions on behalf of another person, typically a child or adult with special needs (someone with an incapacitating illness or developmental disability). Guardianship in Nevada can also apply to estate holdings; you can name a guardian to accept responsibility for making financial decisions on behalf of another, including those relating to bank accounts, paying bills, managing real estate and running a business. Q. How do I protect my hard-earned assets? A. Asset protection is often the number one goal of people when they begin the estate planning process. You have worked hard for your money; why shouldn’t you take steps to protect it? Estate plans can be structured to avoid expensive estate taxes, prevent disqualification from key government benefits (like Medicare or Medicaid that could be used to pay for long-term care) and ensure that future generations will reap the financial benefit of your hard work by holding assets in a conditional trust.

It is helpful to understand the difference between the two classes of assets and how they are distributed when putting together your estate plan. If you have gone through the estate planning process, you may assume that your will would control the distribution of all your property. In reality, you own two types of property: probate and non-probate. Each type is distributed differently. It is therefore important to have a basic understanding of the distribution rules for each to ensure that your estate is distributed according to your wishes. How probate assets are distributed Probate assets must go through the probate process before they may be distributed. During this process, if you have a will, the probate court examines it to ensure that it is valid. Additionally, the court appoints a personal representative to find your heirs, pay your estate’s debts and taxes, and gather your assets. Once this process has been completed and your assets have been distributed according to your will’s terms, probate is complete. If you have a will, all probate assets are distributed according to its terms. However, if you do not have a will, your probate assets still must clear probate before distribution. However, in this case, the ultimate task of probate is to distribute your property according to Nevada’s intestacy laws. These are the default rules of distribution for those without a will. In general, your probate assets are things that only you own. Such property may include motor vehicles, real estate (owned only by you), bank accounts that are in your name, stocks and personal belongings. How non-probate assets are distributed As the term suggests, non-probate assets do not have to go through probate before they are distributed. Non-probate assets, unlike probate assets, are property that is jointly owned or has its own designations of beneficiaries. Such assets often include: Jointly-owned real estate Life insurance Joint bank accounts Retirement plans Assets within a trust Pensions and annuities Other accounts or assets with a “payable-on-death” or beneficiary designation  Unlike probate assets, your will does not control the distribution of non-probate assets; they are distributed according to their beneficiary designations. Because of this fact, problems can arise if there are conflicts between your beneficiary designation and what your will says. For example, you may intend for your life insurance proceeds to be used to fund your children’s educations. However, if you name your spouse as your beneficiary (instead of a trust for example), he or she may use the assets for any purpose, no matter what your will says. This is one of the many problems that can arise if your estate plan is not in order. To ensure that your assets are distributed in the manner that you wish, consult with an experienced estate planning attorney. The attorneys at Escobar & Associates Law Firm, Ltd. can listen to your goals and put the necessary measures in place to carry them out.

When a loved one has a disability, a special needs trust can provide for services and care without affecting benefit eligibility. When you raise and care for a child with special needs, your biggest worry is probably what happens once you are gone. The Census Bureau reports that 56 million Americans have some form of disability. Autism spectrum disorders, for instance, affect one in 68 U.S. children, according to estimates from the Centers for Disease Control and Prevention. Setting up a special needs trust as part of an estate plan provides peace of mind. Most disabled individuals receive government benefits through Supplemental Security Income – currently $721 per month – and/or Medicaid. These benefits generally cut off when a special needs recipient has assets totaling more than $2,000. Listing a disabled child directly as the beneficiary of a 401(k) retirement account or an insurance policy thus affects benefit eligibility. In 1993, Congress passed a statute that excluded certain trust assets from consideration as resources for SSI and Medicaid eligibility. Self-settled and third party trusts can thus bridge shortfalls between benefits received and actual costs. Self-settled trust When funds that belong to the disabled child fund the trust, it is self-settled. A parent, grandparent, guardian or the court must set up this type of trust. An typical example is a parent creating a trust using the child’s insurance settlement money or an inheritance directed to the child from a grandparent. With a self-settled trust, there is a payback provision. This means that when the beneficiary of the trust dies the government can collect the trust’s assets as repayment for Medicaid services provided during the individual’s life. Third party trusts With third party trusts, there is no payback provision. These can be set up and funded by anyone, but funds must not belong to the beneficiary. When a grandparent wants to leave an inheritance or give a birthday gift to a disabled grandchild, placing the funds into a trust is often a better option than a direct gift. Extended family needs to be on the same page or gifts and inheritances could affect benefit eligibility. Choosing a trustee Many parents delay setting up a trust and finalizing estate plans, because the process may seem overwhelming or they do not know whom to designate as trustee. A combination of a family member and a corporate trustee can work well. The relative understands the needs of the child and the financial advisor handles management of the funds. Frequently, a family will select a sibling as trustee. Sometimes if the relationship between a brother and sister is distant, a professional trustee removed from the emotion of dealing with bipolar disorder over the years may be preferable. Not having a will or any estate plan poses problems, because intestacy laws may mean a disabled child inherits a portion of your estate affecting eligibility. Making a call to an estate planning lawyer is the first step. A lawyer can answer your specific questions and draft estate documents that work together to provide for your loved one without affecting benefit eligibility.

Making the decision to divorce and going through the divorce process is never easy. Most people just want it all to be done and over with quickly so they can get on with their lives. Unfortunately, many fail to take the final, necessary step before riding off into the sunset; updating their estate plans.  There are many important aspects to consider when obtaining a divorce. Issues of child support, alimony, division of assets and family pet ownership must be resolved. An integral part to any divorce is estate planning and following are some important aspects to updating your plan: Do not wait: It is not necessary for your divorce to be finalized before you change your estate planning documents. If something should happen to you during the divorce proceedings, your soon-to-be ex-spouse may end up with all of your hard-earned assets. Update your beneficiaries: Certain assets will pass to your family without having to go through the probate process or passing according to the directions in your most recent will. Proceeds from life insurance policies, certain retirement benefits and the like will be distributed to the person or people you have designated as the beneficiaries on those policies. Prior to or during your divorce, contact the companies where you have your policies and remove your ex-spouse as the beneficiary. Choose a guardian: Most likely, the surviving parent of your children will obtain physical custody should one of you pass away while the children are still minors. However, there is no requirement that you put your ex-spouse in charge of financial benefits your children may be entitled to from your estate. If you do not trust your ex-spouse’s financial abilities, there are a number of options available, including setting up a trust. Avoid do-it-yourself plans: In an effort to save time, many people turn to do-it-yourself estate plans. However, these can do much more harm than good; creating more problems for those you love after you are gone. It is important to make sure your new estate plan complies with state laws and actually does what you intend it to after your death. A lawyer can help If you are contemplating or going through a divorce, it is vitally important to update your will, trust, beneficiary designations and other estate planning documents sooner rather than later. Consult an experienced estate planning attorney if you do not have an estate plan, have not recently updated your plan or are splitting from a spouse. A lawyer knowledgeable about divorce and estate planning can help preserve your assets for those you most love.

Despite the economic roller coaster ride the U.S. economy has endured over the past number of years, ours is a wealthy nation. As family members pass on to their great reward, each year future generations stand to inherit more than $1 trillion from parents, grandparents or other relatives.  Unfortunately, as wealth transfers from one generation to the next, more than two-thirds of the recipients quickly lose their inheritances through ineffective estate planning , mismanagement of assets or poor investment choices. Additionally, a high number of lifelong family squabbles start once siblings or other joint heirs receive their inheritances. Many parents concern themselves with the amount of assets and money they will transfer to their children. However, financial advisors stress that parents should be more concerned with effect the money and assets will have on their loved ones. Too often, children are ill prepared to manage large inheritances and, as mourning siblings struggle to deal with issues of probate and distribution of personal belongings, asset management issues may be overwhelming. Preparing children for inheritances Successfully transferring wealth to your children can require a great deal of planning. Not only are will, trusts and other estate planning documents necessary, parents may wish to prepare their children by taking the following steps: Talk about the future: Include your children in your estate planning discussions. Many conflicts can be avoided if adult siblings know what to expect after you are no longer there to explain the rational for your distribution decisions. If there is a lot of money or assets involved, they will also have the opportunity to prepare mentally and physically to take charge of their inheritances. Model financial responsibility: Show how you manage your wealth and assets so your children have an example they can follow. If they do not have any insight into your investment or planning tactics, they may have no idea why you were successful. Provide educational opportunities: Steer your adult children to learning opportunities such as financial management classes or seminars, as appropriate. You may wish to introduce them to your own financial and legal advisors so they have the opportunity to establish relationships with them before they must work together after your death. Show them the ropes: Money is not often a topic of open discussion in families. However, it can be vitally important to show your heirs or explain to them how you got to where you are today. Include them, as practical, in your thought processes so when the time comes, they will know how to invest wisely and manage the money and assets you worked hard to acquire. A lawyer can help While it is important to keep your family in the loop regarding your estate planning wishes, it is also vital that your end-of-life documents are in order. If you do not have an estate plan, or have not recently reviewed or updated your plan, consult an experienced estate planning attorney. A lawyer knowledgeable about probate, estate administration and tax planning can guide you and your family through this often difficult process.

When most people think about estate planning, they often think about drafting a will to ensure that specific property will go to a specific person. They may also make arrangements for the care of their children, and also discuss the type of health care that they are to receive should they become incapacitated.  While a will is definitely a good first step, there are other items that may help people protect their families. Many individuals are passing along some of their property through trusts, which allow the family to avoid certain implications that may have a negative effect. This article discusses some of the types of trusts that may be available to individuals creating an estate plan. Special needs trusts These trusts are most common for families who have children with disabilities who are unable to care for themselves. Parents want to be sure that the child will be cared for after they pass away, and the special needs trust allows the family to set up a system where the child can continue to receive government benefits even after receiving an inheritance. Failing to set up a special needs trust may mean that the child’s benefits could be terminated if he or she receives an inheritance from the parents. The trust can distribute money toward the care of the child, and also contain provisions that establish a residence for the child. This may be the parent’s home or other locations where the child currently resides. Revocable trusts When a revocable trust is set up, this is often done to allow a beneficiary to have access to assets before the trustor passes away. However, the trustor retains the power to terminate or change the trust while he or she is alive, subject to provisions contained in the trust. Irrevocable trusts Generally, individuals will consider irrevocable trusts when estate taxes may be an issue. These trusts will provide assets to a beneficiary at a certain point in time, such as when a child reaches a specific age or when the trustor dies. This type of a trust is also an effective way to hand down family-owned businesses. Unlike revocable trusts, which can be changed, irrevocable trusts by their nature limit the amount of control that a family has over the assets. This makes it extremely important that those drafting these documents understand the family’s wishes at the time the trust is created. AB trusts AB trusts are also focused on the tax consequences that arise after a person passes away. These trusts concern estate tax exemptions for married couples. Often, the trusts are designed to ensure that the surviving spouse is able to remain in the couple’s home until he or she also passes away. If you have questions about how a trust can help you pass along your assets, speak to an experienced estate planning attorney in your area. Each family situation is different, and you want to make sure that you are working with someone who is taking the time to understand your needs. A comprehensive estate plan can help you feel confident that your family will be provided for after you pass away.