All posts by: Lydia Beals

9 Questions Everyone Has About Revocable Living Trusts

1. What is a revocable living trust (“RLT”)?

An RLT is a powerful estate planning method that gives you complete control over your assets both during your life, and after. It is a legal entity that holds property for you and others.

2. If I die leaving only a Will, how will my estate be settled?

In Virginia, as in nearly all states, if you have a Will, without an RLT, the executor of your Will must file your Will with the probate division of the clerk’s office, file requisite forms and accountings, pay taxes on your estate, and distribute your assets to your beneficiaries. Probate costs, including attorney’s fees, court costs, appraisal costs, etc. can range between 5% to 10% of the value of the estate.

Also, the probate process is a matter of public record. This means that anyone, for any reason, can go to the clerk’s office and look at your probate records to see a list of assets, liabilities, and heirs.

3. What are the advantages of having an RLT?

An RLT allows you to have full use, enjoyment, and control over your property during your lifetime and still gives you the control to determine what happens to your estate once you pass away.

It is more difficult for your beneficiaries (or would-be beneficiaries) to challenge the decisions you make in your RLT, compared to a Will.

The RLT will also avoid probate so, the Trust can directly distribute assets to your loved ones. Your privacy is also protected by avoiding probate.

Your RLT can also help shelter your loved ones from taxes.

4. Are there disadvantages to an RLT?

As with all of your estate planning documents, you should frequently review them to ensure no changes are necessary (changes in named parties, changes in assets, etc.).

There may also be costs associated with transferring property into the name of the RLT for your existing assets (for example the cost of filing the deed with the clerk’s office). Good estate planning law firms will include such transfers in their services.

5. What property can I put into my RLT?

An RLT can hold bank accounts, life insurance proceeds, stocks, bonds, real estate, and personal property.

You may list your property in the schedule attached to your RLT. When the property’s status changes – such as when you sell your home or close out an account – it is appropriate to make a note next to the item on the schedule, include the date and what happened.

6. If I make an RLT, do I still need a Will?

Yes. The Will is important to ensure that any property you’ve left out of the RLT is “poured over” into your RLT once you pass away. If the assets outside of your Trust are less than a certain amount, your loved ones can still avoid probate when you pass away. A Will also enables you to name a guardian for your children.

7. What do I do after I set up my RLT?

When you set up your RLT, you can begin naming your assets in the Trust using the Trust schedule. If you are transferring title to the RLT, you will need to contact each institution to fill out the proper paperwork to change the title or beneficiaries of your property. You can do this for bank accounts, stocks, and insurance, for example. As for your real estates, new deeds have to be prepared and filed with appropriate local department of land records. A good estate planning law firm will do all of this for you.

You should also notify the Successor Trustee named in your RLT to advise that person of the Trust and their role in it. Also make sure you tell them where the original document is stored.

8. Where should I keep the RLT documents?

You should keep the original RLT in a fireproof file box or safe. Do NOT keep it in a safety deposit box at a bank because a safety deposit box is often inaccessible upon your death.

9. How can I create, change or revoke my RLT?

You can amend or revoke your RLT at any time, however bear in mind that changes must be done with the same level of formality (including signing process) as the draft of your original trust. Please contact PJI Law at (703) 865-6100 or trusts@pjilaw.com and we will be happy to work with you to update your Trust – or to create one, if you don’t already have one.

 

3 Reasons Why a Trust Protects Your Family Better than a Will Does

3 Reasons Why a Trust Protects Your Family Better than a Will Does

When most people think about estate planning, they assume their best or only option is a Last Will & Testament combined with some joint tenancy or transfer-on-death arrangements for their financial accounts. However, for a large majority of people, there is a superior method to estate planning that has existed for several hundred years and allows you to peacefully and privately transfer your wealth after you die to your loved ones. This method is an estate plan built around a Revocable Living Trust

Like a will, a trust addresses how your estate will be administered and disposed of after you die. However, there is an important difference. A will is a testamentary document signed by you that does not take effect until after you pass away. When you do die, the will must be qualified publicly before your local probate court as part of a potentially very expensive government administration.

Unlike a will, a trust is a private contract between you as creator of the trust and you as the manager of the trust assets. The trust is effective immediately upon you signing your trust agreement and will successfully manage your estate upon either your incapacity or death, so long as your assets remain titled in the name of your trust or the trust is designated as a beneficiary of your assets. And unlike what some may assume, trusts are perfect planning mechanisms for middle-class Americans, and you don’t have to be a Gates or a Rockefeller to afford this type of planning.

The three main advantages of estate planning through a revocable living trust over other basic estate planning options are the following:

  1. Avoids probate.
  2. Privacy.
  3. Flexibility
    3 Reasons Why a Trust Protects Your Family Better than a Will Does

Avoids probate.  Since a trust is a private contract which determines the terms of how its assets are to be managed upon your incapacity and death, there is no need to have a third party bureaucratic entity administering your estate via a potentially lengthy, expensive, and very stressful process called “probate”. The main reason for the probate process is to change title to property from a dead person’s name to that person’s living beneficiaries. With a trust, however, you already retitled your assets during your lifetime out of your individual name and into the name of your trust. Thus, when you die there are no assets owned in your individual name. Therefore, your estate has no reason to go through probate.

Privacy.  Because a trust is private and is administered privately, there is no need of the public process of probate. No need to have your assets sold at a public estate auction nor will your loved ones be bothered by people looking to take advantage of your estate because they could review your will and your list of assets at the probate court.

Flexibility.  As you have read, a trust is a versatile and flexible document. This flexibility is further apparent in how it can work with your transfer-on-death (TOD) accounts in leaving a lasting legacy to your children and grandchildren.

For example, suppose you have two adult children. One is very responsible, but the other not so much. Typically, most parents designate their children individually as the beneficiaries of their financial accounts without considering how they can protect their hard-earned wealth from a child’s creditors or future ex-spouse. Instead, you can establish trusts in your revocable living trust agreement for each of your children (and potentially grandchildren). The share you leave to each child resides in the trust created for them and protects such assets from that child’s creditors or ex-spouse. It just depends on the terms you want drafted. Therefore, you designate your trust as the beneficiary of your TOD accounts instead of the children in their individual names.

If you have more questions about whether a trust may be appropriate for you, give us a call at (703) 865-6100 or send us an email at estateplanning@pjilaw.com.

What Happens if I Die or Get Incapacitated Tomorrow, with No Plan in Place?

What’s the most popular estate planning option? Will-based planning? Trust-based planning? Unfortunately, it’s neither. Number one on the list in Virginia is: doing nothing. The more technical term for this lack of planning is called “dying intestate.”

“Dying intestate” simply means that you have decided to depart this world without doing any estate planning whatsoever. While your family will be horrified at this prospect, your unintended beneficiaries, the government and the probate court will all be delighted.

By dying intestate, you will have allowed the government to draft your estate plan for you. As a result, they can tax your estate and impose other costs at the maximum amount allowable by law. In addition, your assets will go to people according state law’s priorities, not your own. For example, most married couples want their share of the estate to be used by the surviving spouse before the children inherit. However, if you have a blended family situation and provided no direction ahead of time, when you die, the court will only give one-third of your estate to your surviving spouse and two-thirds to your children from a previous marriage.

This problem is exacerbated before you die if you have no incapacity planning documents in place. If (and more likely, when) something happens to you that renders you unable to handle your own affairs, without you having a proper legal plan in place, you will have to go through a legal proceeding where a court appoints a guardian to handle your personal affairs and a conservator to handle your finances. The procedure is oftentimes referred to as “living probate.”

Living probate can be a living nightmare for you and your family for several reasons. First, it can be a humiliating process. You are declared incompetent in a public proceeding. Next, the court is in charge. It will decide which people will manage your affairs; it’s neither you nor your family’s choice.

Because of this court proceeding, there is lag time in the management of your affairs due to paperwork and delays. Of course, these hassles can add a lot of stress and expense to what is already a very stressful situation for your family.

Finally, living probate can be very expensive. Typically, there are court fees, attorneys’ fees, expert witness fees and accounting fees. Additionally, once your conservator has been appointed by the court, this person has to give an annual accounting to the court on how your financial affairs have been managed. This is true even if the court appointed your spouse or one of your children as your conservator.

Doing nothing hurts you, but hurts your family even more. Most of our clients tells us that the reason they’re doing proper planning is to protect their family. If that sounds like what you wish to do, we at PJI Law are here to help. Call us at (703) 865-6100 or email us at family@pjilaw.com.

3 Reasons Why Adding Your Children as Co-Owners on Your Financial Accounts Is an Awful Idea

It has become common practice in Virginia for a surviving parent, after their spouse has passed away, to name one of their children as a co-owner of some or all of their financial accounts. There are a few reasons parents do this, but oftentimes it is to make sure that the child can access the parent’s account for the parent’s benefit if the parent becomes mentally or physically incapacitated. It is sometimes perceived as a shortcut to creating a proper estate plan with a portfolio of legal documents drafted by an attorney.

However, adding a child as a joint owner of your financial accounts is fraught with peril. Here are three of the main reasons:

  1. By adding your child as a joint owner, you are exposing your financial accounts to your child’s creditors. If your child ever goes through financial hardship (perhaps even due to a tragic accident), their creditors may try to collect by garnishing your child’s financial accounts, including ones where you established your child as a joint owner.
  2. Second, you are exposing your finances to your child’s control before you need to cede control. You hope that your child will continue to act in your best interests once you add them as a joint owner to your accounts. Most children will. But some do not, sometimes due to pressure from a spouse. And when they do not, you cannot simply remove the child from your accounts. You must have the child’s written permission to have them removed as a co-owner. Or you can close the account and withdraw all of the funds; of course, you have given your wayward child the ability to do the same thing.
  3. Finally, you may unintentionally disinherit your other children. For example, you have three children, two of whom live in another state, and one lives locally. It is not rare in such a case for a parent to add the child who lives locally as the joint owner on the financial accounts. However, if that is done, joint accounts usually have a survivorship clause in the contract. Which means when the one co-owner dies, the account is now solely the property of the surviving co-owner. Which means the local child inherits all of your financial assets at your death while your other children receive nothing.

There are more problems, of course, but no need to pile on.

So, what do you do? How do you properly allow a child to help you with your finances without adding the child as a co-owner on your accounts? One method is to make your child an “authorized signer” on your financial accounts. That way, the child can sign checks and engage in transactions on your behalf while exposing your finances to only some, but not all, of the perils of co-ownership.

A far stronger solution is that you can, as part of your estate plan, name a child your financial agent in a General Durable Power of Attorney document. Under such a document, your child has the power to engage in financial transactions of your behalf, but they are not considered a co-owner of the accounts. The child has obligations to meet under the law to act in your best interests as your agent and you can revoke the Power of Attorney documents at any time, unless you lack mental capacity.

There are additional aspects of an estate plan that can even make it easier on your child to help you, while simultaneously protect you and your family even more. If you would like more information, please call our team at PJI law at (703) 865-6100, or email us at poa@pjilaw.com.