Articles Posted in Estate Planning

Clients with a Last Will and Testament have often specified that their assets are to be distributed equally between their heirs, only to learn after a thorough estate planning review, that their even-handed intentions would not be carried out as they wish. Your Will may claim that property is to be divided equally, but if a life insurance policy, or your IRA, does not account for your youngest child, for example, or you have added one child as a joint owner to help out with your bank account, but not the others, your will does not undo those transfers and even out your childrens’ inheritance.

A comprehensive estate planning review is a necessary step toward protecting our loved ones after we pass away according to our wishes. As the scenario above indicates, this review requires more than simply preparing a will (or living trust), though that is of course an essential component of any estate plan.

An estate planning attorney can assist you in thinking through all of your assets and can advise regarding the best way to make sure that your goals are met, your wishes carried out.

Family estate plans are changing because families are changing. While many estate plans remain focused on providing for a spouse and children after passing away, more and more address complex considerations because of a blended family.

What if you have one child of your own from a previous marriage, and two children with your spouse, while your spouse has 1 child from a previous marriage. How should you care not only for your own children from a previous marriage, but also for your spouse’s children from their previous marriage or relationship?

This kind of planning requires open and frank discussion between spouses, and sometimes the adult children as well, so they are prepared for and understand your wishes. It also requires you to think through some difficult scenarios to make sure your estate plan prepares well for several contingencies. If you pass away before your spouse, how can you be sure your surviving spouse will provide for your own children? If your spouse passes away before you, to what extent should you care for their children? Do you anticipate conflict between your children over your respective estates?

I often hear from clients serious concerns about what to do with their home in their estate plan. Often at the top of their list is the desire to preserve a residence for one or more of their adult children. Part One of this 2-part series addressed ways to handle your home in your will in a way that preserves it as a residence for one of your children if they should need it.

Many clients also inquire about transferring their property to their children during their life, whether to maintain a residence for one of them, or in an attempt to protect against estate recovery by TennCare. Part Two addresses some of the methods of approaching this issue and the reasons why and why not you may want to make such a transfer.

Give your home out-right to your child during your life.

The family of former U.S. Senator and film/television star Fred Thompson, who passed away in November, 2015, are embroiled in a very public dispute over his estate plan.

His two adult sons from a previous marriage have filed a lawsuit claiming his widow, Jeri Thompson, improperly made changes to the plan during the last weeks of his life (you can read the complaint here). She has asked the court to dismiss the suit, countering that the only changes made were slight and did not impact the sons’ inheritance.

This case highlights a pair of estate planning trouble spots that can easily lead to family conflict, regardless of how well you plan or how good and thorough your attorney is: first, the challenge of blended families; and second, the difficulties surrounding when a loved one begins to lose the ability to care for him or herself.

I often hear from clients serious concerns about what to do with their home in their estate plan. Often at the top of their list is the desire to preserve a residence for one or more of their adult children.

In Tennessee, if you leave your home in your will to your children, they will own the property as tenants-in-common. In that case, nothing prohibits one of them from requiring the home to be sold, even if the others do not agree, and even if one of them lives there at the time. (see previous post on “partition actions” here)

There are reasonable options for addressing this worry in your Last Will and Testament.

If you reside in Tennessee and die without a will, the distribution of your estate is governed by state law. Tennessee Code (T.C.A. 31-2-104) sets out the rules for which family members would receive your property. Here’s the problem: those rules may or may not reflect what you would have wanted.

If you leave no descendants of your own but were married at the time of your death, then your estate will go to your surviving spouse.

However, if you pass away without a will and are married with children, your entire estate will not pass to your spouse as many clients often request in their will. Instead, your estate would be divided between your spouse and each of your children, with the spouse’s share not to drop below one-third (1/3) of the estate.

June 15 was World Elder Abuse and Awareness Day, a yearly recognition begun in 2006 to call attention to the growing problem of fraud, abuse, neglect, and exploitation directed at elders. An estimated 5 million older Americans every year are victims, according to the Department of Health and Human Service’s National Center on Elder Abuse.

Seniors are especially susceptible to scam artists. But sometimes unscrupulous family members or associates can also be guilty of exploitation, fraud, or abuse.

There are several steps you can take now to protect your loved ones and yourself from falling prey to scams and other exploitation in senior years. A Tennessee estate planning attorney can help you with many of these defensive steps.

I probably hear some variation of this concern more than any other in consulting with estate planning clients: the desire to avoid probate. Whether they have heard horror stories about probate or have been through a rough experience themselves, many folks see avoiding probate as an important way to ease the burden on their loved ones after they pass.

There are two bits of good news for Tennesseans with this concern. First, the probate process in Tennessee is relatively straightforward and inexpensive compared with many other states. In itself, probate is nothing to fear. In fact, sometimes a little court oversight and help from an attorney can help assure surviving family members that they are handling affairs properly.

Second, and more importantly, there are some simple steps you can take to ensure that most if not all of your assets will be distributed outside of the probate process, just in the way your assets are titled. You just want to make sure that, if you are titling your assets as part of your estate plan, that it is done with purpose and an eye on the big picture. A good estate planning attorney can help you think through this process.

Most everyone should have a Last Will and Testament. Wills not only allow you (and not the state legislature) to determine how your assets will be distributed after your death, they also can help avoid costly and divisive family squabbles. For families with minor children, however, a will is especially important. There are two fundamental reasons why:

First, a Will is an appropriate place to nominate a guardian for your minor children in the event that both parents pass away. Parents who want to have a say in who will be appointed to raise their children if they are unable need to take affirmative steps to communicate their wishes.

There are several factors parents may want to consider in deciding whom to appoint as guardian:

Consider this Estate Planning 101, an introduction to some of the most important steps to take in planning for the future. Most people are aware that they need a Last Will and Testament. But that is not the only essential document in an estate plan.

Below is a list of the 4 essential documents every estate plan needs. As you will see, estate planning is concerned with more than just what happens after you pass away. In fact, the first three documents are designed to assist you and your loved ones during your lifetime:

  • General Durable Power of Attorney – Who should handle your affairs if you are unable to do so? A General Durable Power of Attorney authorizes a person of your choosing to act on your behalf (as “attorney-in-fact”) in matters other than health care decisions while you are still living. This includes everything from paying your bills to filing your tax return. Because it offers a broad authorization to handle financial matters on your behalf, a Power of Attorney should name someone that is responsible, and that you trust completely.
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