Irving Estate Planning Attorney Explains How Trusts Can Be An Important Planning Tool For Non-traditional families And Same Sex Couples

Irving Estate Planning Attorney explains how trusts can be an important planning tool for non-traditional families and same sex couples.

The use of a revocable trust can be an important estate planning technique for non traditional families and same sex couples.  All estate planning should begin with the four key documents but non traditional families and same sex couples need to take that planning a step further.

A revocable trust is established during a person’s lifetime and the trust document names a trustee and one or more successor trustees to manage the assets that are transferred to the trust.  An individual might name themselves as the trustee and their partner as the successor trustee.  If both partners contribute assets to the trust then they may choose to be co-trustees.  The trust can provide that the individual will manage the assets in the trust until he or she becomes incapacitated or otherwise turns over control to their partner or any other designated individual. 

Upon death, the trust’s assets will not be subject to probate laws, making the transfer of assets private and seamless.  Unmarried partners can use this to transfer property to their partner instead of biological relatives at death.  Also, by naming the partner as co-trustee or alternate trustee, the partner is given access and control over property that might otherwise fall to biological relatives.

There may also be tax benefits to using a revocable trust.  It can postpone the tax implications of transferring property from one partner to the other.  However, there may be tax consequences at death depending on the size of the estate.  There are a number of strategies that can be implemented allowing the partners to reduce the tax implications of the transfer of assets at death.

Finally, it is prudent to use a revocable trust, instead of an irrevocable trust.  Since marriage between same sex partners is not currently recognized, there are also no corresponding divorce protections in the event two partners no longer wish to be attached.  A revocable trust can be easily dissolved allowing the partners to divide their assets if the relationship ends.

The revocable trust can be an excellent tool.  Non traditional families and same sex couples should work with an attorney to see if a revocable trust should be added their estate plan.

Irving Estate Planning Attorney Debbie J. Cunningham practices law in the Irving Las Colinas area.  She provides a variety of legal services for individuals and small business owners.

Irving Attorney Discusses Estate Planning for Business Owners.

Irving Attorney discusses estate planning for business owners. 

Business owners like all individuals should start with the basics.  There are four documents that form the cornerstone of all estate planning.  They are a will, durable power of attorney, medical power of attorney and directive to physcian (living will).  Non-traditional families and same sex couples should consider some additional documents to provide similar coverage available to married couples under the law.

Business owners have unique needs beyond that.  They need to protect their business also.  This may include preparing for a transfer to a known or unknown future owner.  It could also provide for the smooth dismantling of the business.  Providing for either circumstance will remove a burden from the loved ones left behind.

Many business formation documents will address what is to happen in the case of divorce, disability or death.  But these documents should be reviewed regularly to see if they address all potential scenario’s and if the solutions are still viable.  If your business formation documents do not address these issues then you must consider whether to modify your formation documents or address these issue in your will. 

Using your will to define how to transfer or wind up your business can resolve any issues not addressed in the formation documents.  Addressing these issues in your will can be easier than modifying formation documents in some cases.  However, it is also important to ensure someone has authority to run the business if you are disabled. 

Business owners should work with an attorney to ensure they have an estate plan designed to meet their unique needs.  Proper planning will allow you to protect those you leave behind and ensure you leave the legacy you desire.  Every business owner has a dream for the future of their business don’t let poor planing derail that future. 

Irving Business Attorney Debbie J. Cunningham practices law in the Irving Las Colinas area.  She provides a variety of legal services for individuals and small business owners.

Irving Estate Planning Attorney Discusses the Importance of Beneficiary Designations For Non-traditional Families and Same Sex Couples

Irving estate planning attorney discusses the importance of beneficiary designations for non-traditional families and same sex couples.

A comprehensive estate plan begins with a will and directives.  But it would be incomplete without considering beneficiary designations.  This enables every aspect of the plan to work together toward providing for your loved ones.  A review of how all assets are titled and current beneficiary designations will ensure your goals are achieved.

It is important to review beneficiary designations on life insurance policies.  Because insurance proceeds can be considerable, it is critical to ensure that the correct person is designated as the beneficiary and such designation complies with all necessary requirements.  In many cases you may designate more than one beneficiary or a trust may be the beneficiary.  This will allow you to provide for you partner and your children or other loved ones.

In order for a retirement plan participant’s partner to be the recipient of benefits upon death, the partner must be designated on the appropriate beneficiary designation form.  If not, the default beneficiary will likely be the spouse or other biological relation of the participant, as defined under federal law which generally does not recognize same sex marriage. The participant should contact their human resources department and request a summary plan description for their retirement plan.  This should indicate who the default beneficiary is.  Beneficiary designation forms can be requested from a company’s human resources department or on their benefit plan administrator’s website. 

If the retirement plan participant has been married to an opposite sex individual and a divorce is not yet final, regardless of who is designated on the beneficiary designation form, the prior spouse would be entitled to the retirement plan benefits, unless he or she gives her consent to the designation of a different beneficiary.

All financial accounts can pass by beneficiary designation.  It is important to check with your bank and financial planner to ensure your beneficiary designations are up to date and on file.  If no beneficiary is named then the accounts will pay to the estate.  If there is only one beneficiary this is a minor inconvenience.  If certain accounts are intended to provide for a partner or other family member, a lost or incomplete beneficiary designation can defeat the entire plan.

Beneficiary designations are a key piece in the estate planning puzzle.  Individuals should contact an attorney to make sure they comply with all requirements so their wishes will be achieved.

Irving Estate Planning Attorney Debbie J. Cunningham practices law in the Irving Las Colinas area.  She provides a variety of legal services for individuals and small business owners.

Irving Probate Attorney Explains Probate Proceedings

Irving probate attorney explains probate proceedings.  A probate lawyer can help you select the right proceedings for your situation.

When a loved one has passed those left behind are often at a loss for how to proceed.  What needs to be done?  When must it be done?  Can I delay the process to allow time to grieve?  Following are some general guidelines to help answer these questions for residents of Texas.  Since laws vary from state to state and change over time, you will want to consult an attorney to ensure you have information relevant to your situation.

There are several questions that must be answered to determine what options exist and what proceeding is required. 

• Is there a will?
• What type of property is owned?
• Are there unpaid debts of the estate?
• How much time has passed since the death of your loved one?

A standard probate proceeding may be preferred or required if there is a will, property such as a home or car is owned or debts of the estate exist.  However, it must be less than four years since the death of your loved one.  Texas allows for indendent administration if the appropriate language is included in the will.  Independent executors can be appointed without the appropriate language if all of the beneficiaries agree to it.  If there is no language and no agreement then a dependent administration will be created.  The key difference between the two is the number of court appearances required.  The independent executor must only appear once where the dependent administrator must get court permission for every decision that is made. 

If a will exists, real estate is owned and the only debts of the estate are a secured lien on the real estate then a muniment of title proceeding can be used.  This procedure is completed with one hearing and must be commenced within four years of the death of your loved one.  No executor or administrator is appointed because nothing is required except transfer of title to property. 

If no will exists and property is owned but the estate is low in value, a small estate affidavit is a proceeding that can be used.  This requires two disinterested witnesses and all heirs join in the affidavit that is submitted to the court.  No executor or administrator is appointed.

If no will exists and property is owned or there are debts of the estate or and there is a question about who are the heirs, then a determination of heirship is the starting point.  There is no deadline for this procedure as there is with a standard probate.  The court will appoint an attorney ad litem if there are unknown heirs or heirs whose whereabouts are unknown.  If an administrator or executor is needed to handle the estate then this proceeding is filed in conjunction with one of the probate proceedings detailed above.

An affidavit of heirship can be used whether a will exists or not.  Two disintrested witnesses must swear to facts of the deceased’s life before a notary.  The affidavit is then filed in the deed records.  However, the affidavit does not become effective for five years. 

In many cases, the death of a loved one will be followed by some type of legal proceedings.  Some people feel a need to postpone any proceedings until some time to grieve has passed.  While others want to get the process over with so that grieving and then life can move forward.  The best way to ensure you loved ones have either option is with advanced planning.  An estate plan including a will provides the most control for those who are left behind.

Irving Probate Attorney Debbie J. Cunningham practices law in the Irving Las Colinas area.  She provides a variety of legal services for individuals and small business owners.

Irving Estate Planning Attorney Discusses Advanced Planning Documents That Are Critical For Non Traditional Families And Same Sex Couples

Irving Estate Planning Attorney Discusses Advanced Planning Documents That Are Critical For Non Traditional Families And Same Sex Couples.

Planning for all families begins with the same foundational estate planning steps.  However, if you are a non traditional family or in a same sex relationship additional steps are necessary to ensure your loved ones are protected and your wishes followed.  If you want your partner, instead of your biological relatives, to make decisions on your behalf additional steps need to be taken.

The first step to consider is preparing a document regarding disposition of your remains following death.    This is a relatively straightforward document that allows you to specify who should be responsible for making decisions regarding your body and funeral services after you have passed.  The Texas Health and Safety Code provides that, unless a person has left written instructions regarding the disposition of their remains following death, certain individuals will have the right to make decisions on their behalf.  This list of people is very specific, as is the order in which they obtain such rights.  The individuals listed include a surviving spouse, adult children and siblings, among others.  Notably, however, the person designated in a written instrument signed by the deceased will have the right to make any decisions, regardless of whether he or she is related by blood or marriage. Specific requirements regarding the format and content of this document must be satisfied to comply with state law.

The second step to consider is preparing a declaration of guardian in advance of need.  This document allows you to specify who should be appointed your guardian if you become disabled.  The Texas Probate Code provides that any person may in writing declare certain persons and disqualify certain persons to serve as guardians of the person or estate.  The designated person must still comply with the statutory requirements should they be called upon to be the guardian.  However, they will be given preference over biological family members.  This designation can also change the order biological family members are considered.  For example, designating a sibling will place that person ahead of a parent or spouse.  Specific requirements regarding format and content of this document must be satisfied to comply with state law.

Every state has different requirements regarding who will have the right to make decisions if you become incapacitated or following a person’s death.  Therefore, all families should work with an attorney to develop a plan that meets their needs.  However, this is particularly important for non traditional families and same sex couples because the law does not favor these relationships and the best person to make a decision may not have legal standing to do so.  A complete estate plan anticipates the presumption in favor of blood relatives and marriage and creates a plan that is best suited for the individual’s situation.

Irving Attorney Debbie J. Cunningham practices law in the Irving Las Colinas area.  She provides a variety of legal services for individuals and small business owners.

Irving Probate Attorney Explains Property Transfers

Irving Probate Attorney Explains Property Transfers.  What happens next and how to get it done can be a difficult and confusing process.

The death of a loved one can bring a great deal of stress and confusion into the survivor’s life.  What is to be done with the home, furnishings, financial accounts and pets?  Who is responsible and how does it get done?

When someone dies any property owned must be transferred to a new owner.  This transfer takes a variety of forms and which form depends in part on what the deceased owned.  Some property can be transferred with beneficiary statements.  While others require some legal step for the transfer to be complete.

When determining what proceedings are required the first question to ask is “Did the deceased have a will?”.  A will acts as the instruction manual for how the property owned at death should be transferred.  If there is no will, then the probate code provides the instruction manual.

The inquiry does not end here but returns to what type of property was owned.  If they own real estate, vehicles or other titled property, a legal proceeding will be required.  This may require a formal probate proceeding in the court or just an affidavit.  A probate lawyer can provide the necessary guidance as to which steps are required.

If they had financial or retirement accounts then beneficiary statements may be adequate.  Certain assets can be transferred with beneficiary statements and pass outside of the instructions of the will or the probate code.  Financial accounts are the most common asset to transfer this way.  When anyone opens a checking account, brokerage account, or IRA a beneficiary statement is completed directing that institution to pay the balance to a specific individual upon proof of death.  401k’s and other retirement plans also require a beneficiary statement and can pass outside of the probate process.

To make the probate process as simple and smooth as possible for those you leave behind create an estate plan.  Review your will and powers of attorney periodically to ensure they still reflect your wishes.  Consult your financial institutions to check your beneficiary statements from time to time to ensure they still reflect your wishes.

Irving Probate Attorney Debbie J. Cunningham practices law in the Irving Las Colinas area.  She provides a variety of legal services for individuals and small business owners.

Irving Attorney Provides an Overview of Planning for Non Traditional Families and Same Sex Couples

Irving Attorney Provides an Overview of Planning for Non Traditional Families and Same Sex Couples.

While the need for proper estate planning is the same for both traditional and non-traditional families, some of the planning techniques used are different.  Same sex couples are not treated the same as traditional married couples for many purposes and while these differences in treatment present challenges, they are not insurmountable with proper planning. 

Same sex couples, just like opposite sex couples, must have the four key documents.  The four documents include a will, a medical power of attorney, a durable power of attorney and a living will.  These documents are the foundation of any estate plan, whether for traditional or non-traditional families. 

Non-traditional families must pay special attention to several key areas.  Who will make decisions for you if you are unable?  What are the tax implications of transfers now and at death?  When can beneficiary statements solve the problem?  Each of these questions is touched on below and will be covered in depth in a future blog post.

What can same sex or unmarried couples do if they want their partners, instead of their biological relatives, to make decisions on their behalf?    This question frequently arises during medical emergencies.  Preparing before the emergency strikes will arm your partner or the person of your choosing with the tools necessary to ensure your wishes are honored.  A variety of planning techniques are available to meet the needs of your family.

Same sex and unmarried couples are treated differently for tax purposes.  They are not eligible for the marital deduction at the death of their partner.  They have no community property rights.  There is no tax protection for property transfers during life between partners.  There are planning tools available to help overcome these hurdles. 

Finally, the importance of beneficiary designations cannot be stressed enough.  Properly completed beneficiary statements in various financial documents, including life insurance policies and retirement plans can aid in property transfer at death.  Beneficiary designations are critical and should be considered in conjunction with the entire estate plan.

Same sex and unmarried couples need to work with an attorney to develop an estate plan that anticipates challenges and delivers the intended results: to honor their relationship with their partner, ensure their partner can make decisions on their behalf if necessary, and to designate their intended beneficiaries.

Irving Attorney Debbie J. Cunningham practices law in the Irving Las Colinas area.  She provides a variety of legal services for individuals and small business owners.

Irving Attorney Defines Your Estate.

 Irving Attorney Defines your estate.  What is it and why does it matter?

The most basic definition of estate is everything you own.  This includes tangible items like a house, car, boat and furnishings.  It also includes intangible items like investments, bank accounts, 401K’s and IRA’s.  When defining your estate for planning purposes there are two categories of assets.  They are probate and non probate.  Probate assets are assets that come under the jurisdiction of the court at the time of your death.  Non-probate assets are those that do not come under the jurisdiction of the court.

Non probate assets are most commonly created with beneficiary statements.  Banks and other financial institutions have patrons complete beneficiary statements when they open new accounts.  Beneficiary statements are also completed for 401K and other pension and retirement plans.  Life insurance policies also require beneficiary statements.  These statements direct the institution to transfer ownership of the account upon your death to a particular person, company, trust or other entity.

Probate assets are often titled items such as a house, car or boat.  A legal procedure of some type is required to transfer ownership from one person to the next.  However, assets with beneficiary statements that are incomplete or where the probate estate is named as the beneficiary are probate assets as well.

Proper planning is the key to transferring both probate and non-probate assets.  The easiest way to ensure a smooth transfer of probate assets is with a will or trust.  These documents clearly identify who should have the ownership, use or access to the assets upon your death.  Non probate assets can be transferred more quickly since no legal procedure is required.  However, this transition depends on current, accurate beneficiary statements.

Irving Attorney Debbie J. Cunningham practices law in the Irving Las Colinas area.  She provides a variety of legal services for individuals and small business owners.

Irving Attorney Discusses Estate Planning For Pets

Irving Attorney Discusses Estate Planning for Pets.  What options exist to care for your pet?

In some households pets are key members of the family and any estate plan that doesn’t address their needs would be found incomplete.  An important first step in this process is to discuss your desires with the person you wish to care for your animals after you are gone.  There are several questions you should ask yourself and discuss with the potential caregiver.

• Will you care for my pets?
• Is there a limit on the number or type of pets you will care for?
• Can you manage the additional expense of the pet? 

The simplest solution is to include a bequest in your will.  This allows you to leave your pet to another person you know will love and care for them after you are gone.  If you have a variety of pets you can leave their care to various individuals.  Leave the dogs to the dog lover and the reptile to the reptile lover.  If it is merely overwhelming in quantity then having discussed how many animals each person feels they can handle is the key to success.  If you wish the bequest can include a gift of money to help care for the animals.

You can create a pet trust during life or in your will.  You leave your pet and certain funds or property for the care of your pet to a “trustee”.  The trustee is responsible for the care of your pet.  In some cases the trustee manages the financial aspects while a different person is the actual animal caretaker.  A pet trust gives you a great deal of power by allowing you to specify exactly how your pet should be cared for in your absence.

There are a number of programs in place to care for pets after their owners have passed away.  Texas A & M University has the Stevenson Companion Animal Life-Care Center where pets are cared for in a home like environment.  All programs require a donation based on a variety of factors.

You should always have contingent plans for the care of your animals.  The person you have named may be willing but unable to care for your pet when the need arises.  The programs you have selected might no longer be in existence.  Be sure to select alternate caretakers to name in your will or trust documents.  This planning will ensure your pets are cared for in the manner you choose.

Irving Attorney Debbie J. Cunningham practices law in the Irving Las Colinas area.  She provides a variety of legal services for individuals and small business owners.

Irving Attorney Provides an Overview of Trusts

Irving Attorney provides an overview of trusts.  What are they and how are they used? 

A trust is a separate legal entity created for a defined purpose.  In estate planning that purpose is often to reduce a taxable estate or to care for loved ones who are unable to manage their finances.  Trusts can be a great tool to accomplish your goals.

The person who creates the trust is called the grantor or settler.  The trust is created as either a revocable or irrevocable trust.  If a trust is revocable the grantor can dissolve the trust and take control of the assets held in the trust.  If it is irrevocable the grantor cannot dissolve the trust.  This is an important distinction for certain types of planning.

Trusts can be created during the life of the grantor or at death with a will.  Each method of creation is a viable planning strategy.  Trusts created during the life of the grantor are often to solve or address a known problem.  For example if you relocate regularly for your job, owning property in a trust will allow for simplified planning and reduce the need to update estate planning documents with every move.  Trusts created at death with a will are designed to address the unknown problem such as minors inheriting from their parents.  This type of planning will also protect a spouse or adult child that has become incapacitated since the will was drafted.

Trusts can be created to shelter certain assets from estate tax at the death of the grantor.  They can be created to provide for the surviving spouse and then the charity of the grantor’s choosing.  They can provide for a minor child needs until they reach a specified age and are allowed to manage the funds directly.  Trusts can be created to provide for an individual with special needs who is receiving aid without disqualify the person from receiving the aid. 

Trusts are flexible tools that should be considered when you and your attorney draft your estate planning documents.  Planning for the future and the protection of your loved ones should include a discussion about trusts.

Irving Attorney Debbie J. Cunningham practices law in the Irving Las Colinas area.  She provides a variety of legal services for individuals and small business owners.