Probate avoidance is a common goal voiced among estate planning clients. The concern over probate is warranted, given that probate is expensive, confusing, and stressful. Navigating a probate is made even more difficult when undertaken by those who are grieving the loss of a loved one. This article addresses what probate is, a common misconception…
Many people are faced with uncertainty when they have to handle another person’s affairs. My clients often want to know the best way to transfer assets at death. Assets can be transferred in different ways depending on how they are titled. Assets that need to be distributed at death often include real property, vehicles, bank accounts, retirement accounts, life insurance and stocks and bonds. Read More...
As an estate planning and elder law attorney, I often assist people in the midst of a family crisis which can be stressful. It is much less stressful to make well reasoned decisions when you are not facing a crisis. Therefore, the best way to plan for your future, reduce stress and be prepared is to ensure that you have taken the steps described below.
1. Get Your Estate Planning Prepared. If you do not have an estate plan, now is the time to create one. The beginning of the year is a great time to discuss who would make decisions for you and take care of your loved ones if you cannot do so. Additionally, most people should have a will or a revocable living trust, and power of attorney, advance directive and medical authorization as part of their estate plan.
2. Review Your Estate Plan. If you already have an estate plan, review your existing plan. Circumstances may have changed during the previous year. It is a good time to review the personal representatives (executors) and trustees of your estate to make sure that they continue to be the best choice. Additionally, you should review the named recipients of your personal property and other assets to determine if your bequests still reflect your intentions.
3. Beneficiary Designations. You should review your beneficiary designations on all your retirement plans and life insurance policies. You may have named persons who are no longer living or should not receive benefits directly. Some people may lose their state assistance such as Medicaid or other benefits if they receive a portion of your life insurance or retirement policies.
4. Advance Directive. Complete an Oregon advance directive to appoint health care representatives who can make medical and other health care decisions for you if you cannot make decisions for yourself. If you wait to execute these documents until a later date, you may not be able to advise your health care representative of your wishes in the case of end of life decisions. You should provide a copy of your completed advance directive to your primary care doctor and the hospital as well as your health care representatives.
5. Income and Expenses. Review your monthly income and expenses to ensure that you can meet your expenses or have a plan if you need to supplement your monthly income. It is important to review not only your current expenses but future expenses should you need additional care or if there is a change in your living situation. Additionally, if you have limited assets and income or are using your reserves quickly, you should consult with an elder law attorney regarding Medicaid planning. If you are likely to need Medicaid in the future, you should not be gifting any of your assets to other people.
6. Make Tax Free Gifts. In 2016, each person can gift the annual exclusion amount of $14,000 per year to other individuals without any gift tax consequences. If you have an estate worth more than $1 million, this is a great way to transfer wealth to your loved ones while ensuring that you will reduce your estate below the current Oregon estate tax level. However if your asset has a low tax basis, check with your accountant to determine any possible tax consequences before gifting.
7. Insurance Policies. Review your insurance policies to make sure that you have necessary coverage. Often you are paying for insurance that you no longer need or need insurance that you do not have. The beginning of the year is a great time to review your policies with your agent including options for long term care insurance.
8. Estate Taxes. For 2016, the Federal estate tax exemption amount is $5,450,000 with a maximum tax rate of 40% and the Oregon estate tax exemption amount is $1 million with a tax rate of 10 – 16%. The ability to maximize your exemption amounts and other planning options should be reviewed with your estate planning attorney.
9. Unmarried Children. You should encourage your unmarried children who are over 18 to obtain legal documents such as a power of attorney, advance directive and a will since you are unable to act upon your adult child’s behalf without his or her consent or a court order. This can be difficult if your child is injured or otherwise in need of assistance. Additionally, if you are concerned about your child’s inheritance, you can suggest that your child obtain a prenuptial agreement before getting married to protect the assets that the child will inherit.
10. Family Meeting. Discuss your plan with your family or with the person you have nominated to take care of you or your property in the event of illness or death. Make sure that person knows your wishes and where to find your important documents.
Melissa P. Lande is a partner at Bryant, Lovlien & Jarvis in Bend. She focuses her practice on estate planning, wills, trusts, probate, asset protection, elder law, guardianships and conservatorships. For further information, Melissa can be reached at 541 382-4331 or firstname.lastname@example.org.
Melissa is a graduate of New York University and Washington and Lee School of Law in Virginia. She teaches classes at COCC Continuing Education on Estate Planning and Long Term Care. She is a member of the Oregon State Bar Estate Planning and Elder Law Sections. She and her husband, Mark have a son, Griffin and a daughter, Lila.
Preparing your Estate Plan in 2015 Read More...
Authored by Melissa Lande
I am often asked what people should ask their estate planning attorney to make sure that their estate plan is complete, well prepared and will properly carry out their intentions. The questions that follow should assist you with preparation of your estate plan.
1. I do not have a large estate, why do I need an estate plan? Even if you do not have a significant amount of assets, most people should have a Will or a Trust, Power of Attorney, Advance Directive and Medical Authorization. These documents allow you to designate a person to make medical and financial decisions for you during your lifetime and allow you to plan for distribution of your assets after your death.
2. What happens if I die without a Will or a Trust? If you die without a Will or Trust, your assets will pass to the remaining joint owner(s) or to your designated beneficiaries. If an asset does not have a joint owner or a beneficiary, the asset will be subject to probate. Oregon law provides that if you probate assets without a Will, your assets be transferred to your closest family members or other relatives. However, this can be problematic if you prefer that your spouse or your heirs not receive funds outright. Also, if you are married and have children from a previous marriage, the children are immediately entitled to one-half of your assets if you probate assets without a will. You may prefer to structure your plan differently.
Many people want to know the best way to transfer assets at death. It is important to understand that assets can be transferred in different ways depending on how they are titled. The assets that need to be distributed at death often include real property, vehicles, bank accounts, retirement accounts, life insurance and stocks and bonds. Read More...
Unlike many other states, purely handwritten, or holographic, wills
will not be recognized by Oregon courts as valid unless they are signed
and witnessed with certain formalities. For a will to be valid in Oregon
it should be signed and dated by the person making the will, or the
testator, at the end of the will. The testator’s signature must be
attested by at least two witnesses, who must see the testator actually
sign the will in order to sign as witness. The testator’s signature need
not be notarized, but it is very helpful to have the witnesses also
sign a notarized affidavit at the time they sign as witnesses. This
affidavit is necessary to admit the will to a probate court as proof
that the witness’ signatures were valid. Without this affidavit, it will
be necessary to obtain such an affidavit before the will is admitted to
probate, and it can be difficult to find the witnesses if the will is
not admitted to probate until many years after it was signed. Read More...
Here are answers to some common questions that we regularly receive about charitable giving: Read More...
I am often asked how to protect the rights of elderly persons in
Oregon. In addition to having the same rights as other people, Oregon
law provides that elderly persons have some additional protections. Read More...