Much like a well-attended roll call, a robust estate plan needs several legal instruments to ensure its comprehensiveness. The term 'estate planning' might ring a bell, yet the specifics of the legal tools involved may not be as clear. Let's delve into the essential legal tools that constitute a thorough estate plan and explore the protections and advantages each one offers.
Foundation With a Will or Revocable Living Trust:
Establishing a sound foundation is paramount for any structure, and estate planning is no exception. A will or a revocable living trust (RLT) acts as this foundation, guiding the distribution of your assets. While a will operates posthumously, an RLT provides directives both during incapacity and after death, thus making the choice between the two a pivotal decision based on individual circumstances.
Will: A typical choice for a foundational tool, a will necessitates a probate process to distribute your assets, although some assets can bypass probate through beneficiary designations or joint ownership. It's crucial to choose a competent executor to ensure smooth execution of your wishes.
Trust: An RLT, on the other hand, allows for probate avoidance, provided the assets are retitled to the trust. Besides, an RLT offers protection should you become incapacitated, making it a more encompassing tool.
Despite having an RLT, a 'pour-over' will is essential to transfer any assets not titled in the trust at the time of death, also enabling you to nominate guardians for minor children and specify funeral arrangements.
A testamentary trust is another notable tool, created posthumously through provisions stated in a will during one's lifetime, offering a customized distribution plan.
Financial Power of Attorney (POA):
A financial POA is a customizable legal tool, allowing you to appoint an agent to manage your financial affairs. The scope of authority granted can range from specific tasks under a limited POA to almost all financial decisions under a general POA. A Durable POA remains effective even during incapacity, ensuring continued financial management.
Medical Power of Attorney:
Entrusting someone to make medical decisions on your behalf during incapacity is facilitated through a medical POA. This document allows you to appoint a trusted individual, ensuring that your medical preferences are honored even when you cannot communicate them.
Advance Healthcare Directive:
Commonly known as a living will, an advance directive lets you specify your preferences for end-of-life care. It's a critical tool to have, providing clear instructions about life-support measures in terminal or vegetative conditions.
The Health Insurance and Accountability Act (HIPAA) authorizations enable designated individuals to access your medical records. While not granting decision-making authority, these authorizations ensure selected individuals are informed about your medical condition.
For parents, securing the future of minor children is paramount. Some states offer separate legal instruments for appointing guardians, whereas others incorporate these provisions within a will. Consultation with an estate planning attorney can provide clarity on the appropriate tools for your state.
Temporary Guardianship or Parental Power Delegation:
Circumstances like extended travel may necessitate the delegation of parental powers to a temporary guardian. Understanding state-specific guidelines regarding the duration and limitations of such delegations is crucial to ensure the well-being of your children during your absence.
Navigating through the legal intricacies of estate planning might seem daunting, but with the right guidance and a well-structured plan, you can secure peace of mind for yourself and your loved ones. Engaging with an experienced estate planning attorney will ensure that the legal tools in your estate planning toolkit are tailored to meet your unique needs and circumstances.
The 18th birthday of a disabled child can evoke feelings of apprehension for parents. While some parents may view their children as ready to embrace independence and take charge of their lives, parents of disabled children typically harbor concerns about how their child will navigate life without their oversight. With their child now legally considered an adult, parents may lose the ability to make decisions on their behalf or receive information about their medical or financial needs. This can leave many parents feeling unsure of how to continue caring for their child. However, by preparing thoroughly and seeking professional legal advice, parents can take measures to ensure that their child's needs continue to be met and their best interests remain safeguarded with asset protection you can perform in Reno, NV.
To ensure the ongoing ability to provide care for your disabled child after they reach 18, it is advisable to explore the option of having them execute a financial and/or medical power of attorney. A financial power of attorney will authorize someone chosen by your child to make financial decisions on their behalf in case they become incapacitated or are unable to communicate their wishes. In the absence of this document, you may need to pursue legal avenues to acquire the necessary authority for managing your child's financial affairs. It's important to know that if your child chooses you to make decisions for them, they can still make their own choices if they have the capacity too.
Additionally, your child has the option to execute a medical power of attorney. This will allow them to designate a trusted agent who can make medical decisions on their behalf in situations where they are unable to do so or unable to communicate their preferences to healthcare providers. The agent appointed is chosen to make decisions according to your child's wishes. As long as your child possesses the capacity to make and articulate their own medical decisions, they maintain the right to do so, and the appointed agent would only step in if your child becomes incapable of making or expressing their preferences.
Executing a financial or medical power of attorney requires that your child has the mental capacity to understand and sign the documents, with specific capacity requirements varying by state. Even if your child cannot physically sign the documents, they may still be able to execute them. It's crucial to prepare these documents ahead of time, particularly if your child has a degenerative condition. Not planning ahead can lead to serious problems because the documents are meant to assist your child when they can't make decisions on their own. Until that happens, your child can still make their own choices.
In the event that your child is not able to execute a financial or medical power of attorney due to lack of mental capacity, making decisions on their behalf may require court intervention. This process can be lengthy, costly, and public, causing additional stress and difficulties for both you and your child.
If your child is incapable of executing the required legal documents, you might need to undergo a legal procedure in court to establish guardianship and conservatorship. During this process, you would ask the court to grant you the authority to make decisions on your child’s behalf. The exact titles of the roles you may be seeking appointment for vary by state, but generally a guardian (sometimes known as a guardian of the person or conservator of the person) is authorized to make general life decisions for your child, such as where they live and what medical treatment they receive. A conservator is authorized to make financial decisions on behalf of your child.
If appointed as a guardian or conservator, you would have authority to make all decisions, including power of attorney for medical records, and your child would no longer be able to make any decisions for themselves. In some states, you may have the option to seek a limited or partial guardianship or conservatorship, where you can only make decisions specified by a court order. In all other matters, your child retains the right to make their own decisions. The court's overall objective is to promote independence while ensuring that your child receives the necessary support and care.
Get in touch with us today if you are wanting to be prepared for your child with disabilities to approach the age of 18. It's important to plan ahead so that your child gets the same care they had going up well into their adult life. This includes addressing the power of attorney for medical records. Our team is available to provide support and guidance as you navigate through the essential steps.
When it comes to estate planning and legacy planning, most individuals focus on passing down their assets to their children and heirs. However, for those seeking to establish a legacy that will endure for generations, the concept of a dynasty trust becomes particularly intriguing.
A dynasty trust, an integral part of estate planning, is an irrevocable trust that offers similar tax advantages and asset protection as other trust types, but with a remarkable distinction—it can span multiple generations. Often referred to as perpetual trusts, dynasty trusts are meticulously designed to last indefinitely, as long as the trust's assets remain intact. Given the long-term nature of a dynasty trust, it is imperative to establish it with utmost care and attention to detail. Once the trust is in place, its rules generally cannot be altered, underscoring the importance of getting everything right from the beginning.
Setting up a dynasty trust follows a process akin to that of any other trust. The grantor, who serves as the trust's creator, transfers funds and assets into the trust during their lifetime or, in the case of a testamentary dynasty trust, after their death. Once the trust is funded, it becomes irrevocable, and the rules established by the grantor become fixed. Modifying these rules is only possible under specific state laws that govern trust modifications.
When establishing a dynasty trust, thoughtful consideration must be given to selecting the most suitable trustee. It is common practice to appoint an independent trustee, such as a bank or trust company, to administer the trust throughout its existence. Although a beneficiary can serve as a trustee, this approach may give rise to potential issues concerning taxes and creditor protection. A beneficiary-controlled trust can have significant implications for income and estate taxes, depending on the extent of the beneficiary's powers. It can also impact the level of asset protection provided to the beneficiary and expose family wealth to the risk of misappropriation. On the other hand, a corporate trustee, such as the dynasty trust itself, possesses indefinite legal life and can ensure uninterrupted administration across generations. Corporate trustees typically charge an annual fee based on the value of assets held in the trust.
While trusts are generally beneficial for individuals across various financial backgrounds, there are exceptions, and the dynasty trust is one of them. Establishing a dynasty trust does not necessitate grand dynastic aspirations akin to illustrious families like the Medici or the House of Windsor. However, it is most commonly utilized by families with substantial wealth. While there are no legal requirements regarding the minimum amount of funds needed to establish a dynasty trust, from a practical perspective, it is typically suitable for those with sufficient wealth and assets capable of sustaining multiple generations, taking into account the financial needs and responsibilities of the beneficiaries. Grantors who are concerned about future generations beyond their children often opt for dynasty trusts as part of their estate and legacy planning. Additionally, dynasty trusts can prove invaluable for families that own a family business and desire to maintain its continuity within the family lineage.
Statistics reveal that many family businesses fail to survive beyond the second or third generation, but a dynasty trust can significantly enhance the chances of success. By placing shares of the business into the trust, the grantor can provide for multiple generations of beneficiaries while ensuring the seamless continuation of business operations through professional trustee management. The trustee assumes responsibility for managing the business affairs and maintaining continuity, while the beneficiaries reap financial benefits. Furthermore, the grantor can include specific terms within the trust to guarantee competent business management, such as mandating the trustee to establish an advisory council functioning as a board of directors.
In the realm of estate planning and legacy planning, one of the notable advantages of establishing a dynasty trust is the potential for significant tax benefits. By leveraging the federal estate tax exemption amount (which currently stands at $12.06 million per individual in 2022, or twice that amount for couples) to fund a dynasty trust, you can effectively transfer money and property directly to your grandchildren while avoiding gift or generation-skipping transfer (GST) taxes. To achieve this, you would place accounts and property into the trust and file a gift tax return to allocate appropriate tax exemptions to the trust or pay a portion of the wealth transfer tax. This strategic approach ensures that these assets are not included in your taxable estate, nor in the taxable estates of your beneficiaries, provided that the trust is fully exempt from GST tax.
Furthermore, utilizing trust funds to cover a beneficiary's living expenses or investing in a home for their benefit can also help reduce their taxable estate. Additionally, when a dynasty trust is properly drafted, accounts and property left to your loved ones within the trust can enjoy protection from creditors and divorce courts. In contrast, gifting money outright may not offer these same protective benefits.
It is worth noting that dynasty trusts are not available in every state due to the rule against perpetuities, a common law principle that restricts the duration of controlled property interests, including those established within trusts. This rule, which was not specifically created for trusts, aims to prevent individuals from exerting control over property ownership for an extended period after their demise through legal instruments like deeds and trusts. However, many states have modified or even eliminated this rule, as its interpretation can be complex. With the guidance of an experienced estate planning attorney, you may be able to establish a trust in a state where you do not reside, taking advantage of more favorable laws.
If you are considering the establishment of a dynasty trust, our firm can connect you with a skilled estate planning attorney who can guide you through the process. During your consultation, crucial factors such as selecting a trustee and beneficiaries, implementing tax and creditor protection strategies, understanding state laws pertaining to perpetual trusts, and aligning the dynasty trust with your comprehensive estate plan will be thoroughly discussed. Taking this initial step will enable you to secure your legacy and ensure the preservation of your wealth for future generations. To embark on this journey, please reach out to us, and we will be delighted to assist you.
Every child is a precious gift, and as parents or grandparents, we strive to plan for their future, anticipating their needs and aspirations. However, families with special needs children or grandchildren face additional responsibilities in ensuring their loved one's future is secure, fulfilling, and supported. To ensure a flourishing future for your special needs child or grandchild, estate planning measures focused on their unique circumstances are essential. We recommend the following steps:
When it comes to estate planning, creating a Special or Supplemental Needs Trust (SNT) for your special needs child or grandchild should be a top priority. An SNT is a specialized trust designed to set aside funds and assets for the benefit of a beneficiary who may qualify for public assistance due to their disabilities. It can be established as a standalone trust or added to your existing trust.
It's important to note that government programs providing aid to disabled individuals have strict criteria regarding the amount of money and property a person can own while receiving benefits. Structuring any inheritance your special needs beneficiary may receive in a way that doesn't disqualify them from obtaining government benefits is crucial. Even if they are not currently receiving government benefits, considering the possibility of future needs is essential. To ensure all opportunities are available, it is vital that the trust is meticulously drafted by a lawyer well-versed in the eligibility requirements for government benefits.
An SNT not only provides financial security but also allows you to appoint a care manager or advisory committee. The care manager serves as an advocate for your special needs beneficiary, overseeing their well-being periodically or daily, depending on their level of care requirements. An advisory committee, comprising family members, friends, and professionals, can provide guidance to the trustee on the beneficiary's needs and the best use of the funds.
Additionally, the SNT can include a statement of intent, outlining the trust's purpose and how the funds should be utilized. This section acts as a safety net in case changes in the law make the beneficiary ineligible for government benefits. It allows for modifications to ensure your original intentions are met, even in the face of unforeseen circumstances.
In addition to establishing an SNT, putting your instructions in writing is crucial to ensure your wishes are carried out as intended. Consider creating a letter or memorandum of intent that provides guidance to your trustee on managing the trust after your passing. Although not legally binding, this document offers valuable insights into your true intentions. You can include details on how the funds should be used in accordance with government rules, specific goals you would like the beneficiary to achieve, and the standard of living you envision for them.
Supporting a special needs child or grandchild can be financially demanding, and it's important to consider how to sustain their care once you pass away. Life insurance can be a valuable tool in ensuring there will be sufficient funds for the trustee to use for their benefit. By designating the SNT as the beneficiary, you can provide a lump sum payment that is not subject to the same tax liabilities as retirement accounts.
The SECURE Act has brought changes to how beneficiaries can receive distributions from inherited IRAs, potentially impacting the financial support available to your special needs beneficiary. However, the Act also recognizes "eligible designated beneficiaries," including individuals with disabilities, who can still receive distributions over their life expectancies. Congress has established rules that allow the life expectancy of disabled beneficiaries to be used for certain types of trusts. If you have a substantial retirement account, it is crucial to discuss your distribution options to maximize benefits for all your beneficiaries.
We understand that securing a bright future for your special needs child or grandchild is of utmost importance to you. Our priority is to work with you in developing a comprehensive plan that will guarantee continued care and well-being for your loved ones. Please do not hesitate to reach out to us to schedule an appointment so that we can begin this process together.
When Elvis Presley, the King of Rock and Roll, passed away in 1977, he left behind a complicated legacy, just like his famous dance moves. His estate, including the iconic Graceland, eventually ended up in the hands of his only child, Lisa Marie Presley. However, the future of Elvis's legacy and the fate of his estate face challenges ahead. These challenges involve Lisa Marie's personal financial issues, a significant age gap among her children, and even a legal dispute initiated by her mother, Priscilla Presley. The unfolding of this captivating saga will determine the course of Elvis's rockin' legacy.
From Elvis to Lisa Marie: Inheritance and Financial Legacy
Lisa Marie, born in 1968 to the legendary rock and roll icon Elvis Presley and his wife Priscilla Presley, had to face the tragic loss of her father at a young age. Sadly, Elvis passed away at forty-two due to a heart attack. Fast forward to January 2023, and Lisa Marie herself succumbed to heart problems at the age of fifty-four.
Despite Elvis's untimely departure, his legacy has continued to thrive, with his estate earning an impressive $400 million in the previous year alone. The value of the estate skyrocketed to over $1 billion, thanks in part to the 2022 Elvis biopic movie. This created a substantial financial legacy for Lisa Marie to inherit.
The Elvis Presley Trust
When Elvis Presley passed away, his estate was placed in a trust with Lisa Marie, his grandmother, and his father as beneficiaries. According to the trust, Lisa Marie's inheritance was held in trust until she turned twenty-five in February 1993. After that, the trust dissolved automatically, and Lisa Marie inherited $100 million, including Graceland, her childhood home.
Today, Graceland stands as a museum and popular tourist attraction, generating over $10 million annually. To manage Graceland and the rest of Elvis's estate, which includes Elvis Presley Enterprises, Inc. (EPE), Lisa Marie established the Elvis Presley Trust. Until 2005, Lisa Marie served as the owner and chairperson of EPE's board, but she later sold 85 percent of its assets.
Graceland and the Living Trust
Graceland, the iconic mansion that was once Elvis Presley's residence, has become a symbol of his legacy and a beloved tourist destination. After Lisa Marie inherited it, she made it clear that Graceland would always remain within the family.
Lisa Marie's children, Riley Keough, Harper Lockwood, and Finley Lockwood, are set to inherit her fortune and properties through a living trust. However, Lisa Marie's son, Benjamin Keough, tragically passed away in 2020.
Considering that it's unclear whether Lisa Marie had a separate will in place, the living trust, an estate planning document, will play a significant role in determining the distribution of her assets. Through the living trust, individuals can transfer ownership of accounts and property to a separate entity, the trust, which they control while alive. The trust also names a successor trustee to manage the accounts and property after their passing.
Priscilla Presley's Trust Challenge
A challenge to Lisa Marie's living trust has emerged from an unexpected source—her own mother, Priscilla Presley. The legal dispute revolves around a 2016 amendment to the trust, which removed Priscilla and a former business manager as trustees and replaced them with Lisa Marie's daughter, Riley Keough, and her late son, Benjamin Keough.
Navigating the Challenges: Estate Planning and Protecting Your Legacy
Priscilla's claim challenges the validity of the living trust amendment, citing violations of legal requirements. She highlights the lack of proper notification, absence of witnesses or notarization, and even a misspelling of her name in the document. Adding to her concerns, Priscilla alleges that her daughter's signature appears suspiciously different from her usual signature. Consequently, she has sought the court's intervention to invalidate the amendment that removed her as the trustee.
Lisa Marie's Financial Struggles
Recent legal documents indicate that Lisa Marie faced financial challenges before her passing, despite inheriting $100 million at the age of twenty-five. She held approximately $95,000 in cash and possessed various assets such as bonds and stocks valued at $715,000. Although she earned over $100,000 per month from EPE, she also carried a $1 million tax debt and incurred monthly expenses of $92,000. Furthermore, her ex-husband, Michael Lockwood, reopened a lawsuit seeking $4,600 per month in child support.
By 2016, Lisa Marie's $100 million trust had significantly dwindled to just $14,000 in cash. Her former manager, Barry Siegel, faced allegations of mismanaging her finances, which resulted in a decline of her wealth. Court records reveal that Lisa Marie was burdened with a $16.67 million debt at that time. However, in 2019, Siegel countered the claims and asserted that the sale of her 85 percent stake in EPE helped resolve over $20 million in debts.
Potential Legal Challenges for the Lisa Marie Presley Estate
The legal ambiguity surrounding Lisa Marie's estate gives rise to numerous potential legal issues that will likely require judicial resolution. One such challenge is Priscilla's claim against the living trust amendment. If her challenge is successful, the amendment would be considered void, making Priscilla the successor trustee responsible for managing the trust's assets and funds instead of Lisa Marie's daughter, Riley. This matter would necessitate court intervention for resolution.
Although it remains uncertain whether Lisa Marie had outstanding debts, if she did, creditors could make claims against her estate. The estate would need to determine whether to accept or reject these claims. Rejecting them could lead to legal disputes. Creditors hold priority over beneficiaries, which means that Lisa Marie's accounts and property, including Graceland, might need to be sold to satisfy any outstanding debts. Additionally, even after the debts are settled, the estate may still be subject to estate taxes, which could further complicate matters if creditors decide to initiate lawsuits.
Her Daughters' Inheritance
Assuming the estate possesses sufficient funds to settle debts without selling Graceland, Lisa Marie's three daughters, Riley, Harper, and Finley, are poised to inherit the mansion and any remaining property or funds. However, the upkeep and tax costs associated with Graceland surpass $500,000 annually. It remains uncertain whether the daughters would collectively agree to bear these expenses and preserve the Elvis legacy within the family.
The daughters have the option to sell Graceland, but this decision could ignite internal conflicts if even one daughter wishes to pursue a sale. Additionally, crucial details regarding the ages of the daughters and their inheritances remain unknown. Did Lisa Marie establish a trust to hold her twin daughters' inheritances until they reach a specific age, as her father did for her? Or does the trustee possess discretionary power over the funds? Moreover, depending on the outcome of the trust challenge, will the trustee ultimately be Riley or Priscilla?
Furthermore, the question of whether Lisa Marie distributed her estate equally among her daughters remains unclear, as there is no legal requirement for equal distribution.
Control What You Can with an Estate Plan
The sudden and tragic passing of Lisa Marie Presley serves as a reminder that death can come unexpectedly. However, through estate planning, we can exert some control over our legacy.
Crafting a comprehensive estate plan can help alleviate some of the uncertainty and provide peace of mind to both ourselves and our loved ones. If you're ready to start planning for the future, please reach out to our office to schedule a consultation.
Prepare to be amazed! May is not just any ordinary month - it's National Home Remodeling Month, the time of year when the National Association of Home Builders officially recognizes the tremendous value of home improvement projects. Springtime comes with spring cleanings and home improvement projects, but can also be a good time to consider updating your estate planning documents.
If you need to make small updates to your estate planning documents, such as changing the names of beneficiaries or decision makers, you may wonder whether you can take care of these changes on your own or if you should seek the assistance of a professional. Here are some things to consider before choosing which option is best for you:
If Your Name Changes
If you've changed your name due to marriage and/or your own personal preference, and your estate planning documents don't need to be changed, you may only need to keep copies of any legal paperwork reflecting the name change. Keep copies of these documents together with your estate planning documents. If you've remarried and want to change your name in your estate planning information, or if a trust you established has your old name in the title, it's best to consult an industry professional, such as an attorney, to ensure that the name change is properly handled.
If a Beneficiary’s Name Changes
Wondering what you should do if your beneficiary's name changes? Whether it is due to marriage and/or personal preference, staying on top of this information can save you from running into issues later down the road. While updating your estate planning documents is not necessarily critical, it may be necessary for your beneficiary to prove their identity with a court order, marriage certificate, or birth certificate. It is important to avoid making changes directly on your estate planning documents, such as crossing out a name and writing in a new one. This has resulted in confusion and has even prompted litigation in the past. Courts have had to weigh in on these types of edits to estate planning documents to determine their validity and intent. Even though it may seem harmless, unforeseen consequences can often arise when attempting to edit legal documents yourself.
Adding or Removing a Beneficiary
When events occur such as the birth of a child or the passing of a beneficiary, you may wonder if you need to update your estate planning documents. The answer is that it depends on the language in your documents. Some estate planning documents are drafted to anticipate future additions or removals of beneficiaries by name. It is highly important to seek legal advice before making any changes to your estate planning documents, as serious legal consequences can result from attempting to do so on your own.
Making changes without legal advice could result in unintentionally cutting off people from receiving an inheritance or having your property go to those who never intended to benefit. For instance, adding a spouse’s name to the list of children in your estate planning documents could lead to unintended consequences if the spouse remarries after the child’s death. The former in-law could become a beneficiary of the family trust and have certain rights regarding the trust’s administration, including the right to demand a copy of the trust documents and any financial accountancy. Once that share is paid out, the former in-law might use it in a way that it was not originally intended for, causing negative consequences from an innocent and well-meaning attempt to provide for an in-law.
Appointing New Trusted Decision Makers
In some cases, you may want to appoint new individuals to make important decisions about your property if you become incapacitated or pass away. However, it’s important to understand that certain legal documents cannot be amended easily. While it may be tempting to simply cross off the names of the people you want to remove and add new preferred decision-makers, this can actually void the document under certain circumstances.
If you need to make such important changes, it’s best to have the documents redrafted and executed with the same formalities used in the original documents, ensuring that you follow the applicable state law. For instance, your state may require multiple unrelated witnesses to the signing of a modified will, even if the change you’re making is a one-sentence amendment. The same is true for a codicil, which is an amendment to your will. Other legal documents, such as a power of attorney, a trust amendment, or restatement, may also require similar formalities, such as having your signature notarized.
Modifying Distribution Provisions
There may be times when you consider altering the distribution provisions of your will or trust by changing the percentage/fraction shares of your estate. It is important to note that this modification should be avoided when attempting to make such changes on your own. It is always advisable to consult an attorney if you wish to modify the distribution provisions of your will or trust. You must consider this amendment very carefully and execute it with strict documentation. Such a change to your estate planning documents carries the risk that a beneficiary who receives less under the amendment may challenge it and use any argument available to invalidate the changes. An experienced estate planning attorney will know the necessary steps to take to ensure that your legal documents will be honored by your beneficiaries and the courts after you pass away.
As you have seen, remodeling your estate plan without the help of a trained and experienced attorney can lead to many potential issues. When handled properly, these changes don’t have to be expensive. Your attorney can quickly and inexpensively fix some of these small issues by drafting an amendment to your estate planning documents. Other changes may require more work because the issues are considerably more complex than you first realized. In either case, with a legal professional guiding you through the process, you can be confident that you will not be leaving your loved ones with a legal mess to sort out after you are gone.
If you are uncertain about whether you need an attorney to help you modify your estate plan, we encourage you to contact us. We are happy to consult with you and help you determine what changes, if any, you may need to make.
If you have children or young loved ones you hold close, you can make a large impact on their development by sharing knowledge to help them succeed in life. January is National Mentoring Month, and there’s no better time to help mentees form goals that will put them ahead of the curve.
Usually when estate planning is mentioned, we default to the notion that it only relates to a person passing, or when someone is preparing to transfer assets to loved ones. While these scenarios are definitely part of estate planning, it also involves the development of good habits throughout your whole adult life. This is where mentoring comes in. Teaching your children and other young family members the value of financial and estate planning now can help them in the long run. Here are some ways you can implement teachings and set them up for success:
Start by teaching them the importance of setting goals and how to set them for themselves. For instance, if they want to start a business or pay for college in the future, help them set up a savings or investment account and incentivize regular deposits by matching a portion of their contributions. If they want to give to a charitable cause, match their donations to encourage them. By helping them achieve their goals through their own efforts, they will learn valuable lessons and benefit from the experience. Share your own experiences and lessons learned when pursuing similar goals to further aid in their success.
For example, if you plan to pass on a family cabin to your children, give them information on how to maintain it and create a schedule for taking care of it. Share your knowledge and experience you gained caring for it growing up. If you and your siblings were responsible for the cabin growing up, teach them the best ways you found to work together as a team to care for the property. Along with providing practical information, share personal stories and memories about your own experiences at the cabin to communicate its importance and why you want them to have similar positive experiences once it’s passed down to the next generation.
Share the lessons you learned from your parents about saving money or contributing to good causes. If you have developed money management skills that have helped you build a significant estate and benefit your family and others, invest time in teaching those skills to your mentee. Similarly, if you have found effective ways to evaluate the credibility of charities and make responsible donations, share that knowledge with your mentee so they can make informed decisions. Emphasize to your mentee how these skills have positively impacted your life and the lives of others to stress their importance and the value of learning them.
Mentoring in a creative way allows you to pass on more than just your assets to your loved ones. You can also share your core values, skills and experiences gained from putting them into practice. If you wish to leave a lasting legacy for your family and loved ones by creating or updating your life plan, reach out to Anderson, Dorn & Rader for help.
Unexpected personal tragedies are not particularly common, but they do occur and they can dramatically change the course of a child’s life. Parents in the United States have a statutory right and responsibility to name a guardian for their child or children. If a guardian isn’t legally appointed by the parent, it becomes the responsibility of a judge to determine guardianship following the parents’ passing or incapacitation. In such instances, custody of the child may go to anyone chosen by the judge, regardless of what the parents would have wanted.
The guardianship of a child who is originally from another country can be even more complicated to manage. A child custody attorney can help citizens and non-citizens determine proper guardianship for children in the event of their incapacitation. Learn more about guardianship in Nevada below.
A general rule of thumb regarding guardianship in Nevada, or any state in the U.S., is that all parents have a fundamental and constitutional right to the care, custody, and control of their child. This essentially means that a parent has the right to make all decisions for their child without interference so long as they do not put the child in danger. This right was eventually extended to non-citizen parents that reside in the U.S. legally, allowing both citizen and non-citizen parents to name whomever they want as a guardian to their children—so long as they meet the state requirements.
It’s important to note that it is not only a parent’s right to choose a guardian but also their responsibility. This is the only way to keep the courts from determining guardianship of the child.
Children who legally reside in the U.S. as citizens but are native to another country may face further obstacles. Because it’s easier for a judge to oversee the safety and care of a child within their jurisdiction, it can be difficult to move a child to another country. To combat this, parents should be clear about who the child will live with and where (whether in the U.S. or not).
Parents of children with attachments to other countries should always apply for dual citizenship for the home country and the United States. This will prove to the court that the parents intended for their child to have connections to their home country and provide a basis for relatives living outside of the U.S. to request guardianship assistance from their own state department. Proving dual citizenship will help the process of expatriation and ensure the child is able to travel back to their home country.
It’s also possible that a non-citizen may be appointed as the guardian of a child. However, if the parents request for the child to remain in the U.S., there is no guarantee that the guardian will be allowed to stay in the U.S due to the guardianship alone. The person who is appointed as the child’s guardian will need to become a U.S. citizen through their own legal proceedings for this to be accepted.
It is possible for the law to interfere with a parent’s choice of guardianship under specific circumstances. A court may invoke the policies of “Best Interests” and protections made by the Hague Convention to retain custody of a child who would otherwise be sent to a country where they would be endangered or persecuted. While this is not very common when handling guardianship in Nevada, it is an issue that could possibly arise.
During interim periods between emigration, which can take months, a child may be stuck living in the U.S. before they can be united with their new full-time guardian. In these cases, a temporary guardian will also need to be nominated for the time being.
The child custody attorneys, Anderson, Dorn & Rader, are here to ensure the decisions you make regarding your child’s care are kept and seen through. If you need help legally determining guardianship in Nevada for your child, connect with us today.
In 1984, Congress issued a resolution, signed by President Reagan, establishing March 21st as National Single Parent Day: a day devoted to recognizing the dedication of single parents, who make self-sacrificial efforts to care for their children’s needs, and encouraging family members, friends, and communities to help provide an optimal environment for their children. As a single parent, you should feel proud of your efforts to nurture and care for your children. Here are a few additional things you can do to provide for your children’s future that you may not have considered.
If your children’s other parent is willing and able to care for them if you pass away unexpectedly, he or she will likely be given physical custody of the children and responsibility for their care. In the case of single parents, however, the other parent often may not be able or willing to take on this role. This is why it is crucial for you to name a guardian who will step into your shoes to provide day-to-day care for your children if something happens to you. If you do not name a person you trust, a court will step in to appoint someone. Because the person the court chooses to be your children’s guardian may not be the person you would have chosen, it is vitally important that you designate this person in advance. You can name a guardian in your will (and in some states, a separate document can be used specifically for this purpose): Although the court will still have to appoint the guardian, the court will typically defer to your wishes.
In making your decision, there are a few factors to keep in mind: Does your chosen guardian share your values and parenting style? Will your chosen guardian require your children to relocate? Does your chosen guardian have the energy and stamina needed to care for your children? Do they have the time to be an involved caregiver? Do you want more than one guardian to care for multiple children, or do you prefer for the children to stay together? It is important to weigh the importance of these considerations in making your decision.
If your children are minors, you can establish a custodial account to hold an inheritance under a law called the Uniform Transfer to Minors Act or the Uniform Gifts to Minors Act. If you do not appoint the custodian, the court will appoint someone to control and manage your children’s inheritance until they reach the age of majority. This is necessary because minors legally cannot own money or property on their own. A custodian will manage the funds in the account for the benefit of your children, but the downside is that when they reach the age of majority (18-21 years old depending on applicable state law), the funds will be distributed to them in a lump sum. At that point, they can spend the money as they wish, which may not be optimal for a young person who is not yet mature enough to make prudent financial decisions. In addition, any present or future creditors could try to reach your children’s inheritance to satisfy their claims.
A trust is often preferred over a custodial account because it is more flexible and can be designed to protect the funds against your children’s future creditors and their own imprudent spending. You can name someone who is adept at handling money to manage and disperse the funds for the benefit of your children if you die before they reach adulthood—or the age you have decided to the funds should be distributed to them. This can be the same person who will act as the children’s guardian, or a different person if you do not trust the guardian (e.g., an ex-spouse) to handle the money you have left to your children.
If you would like to set up a trust that can be used to manage your money and property for your (and your children’s) benefit if you become too ill to do it yourself, you can establish a revocable living trust with yourself as the trustee. This type of trust will remain in effect if you pass away, and the successor trustee you have named can continue to manage the funds and make distributions for the benefit of your children. The successor trustee can also step in to manage and distribute the funds for your benefit if you are unable to do so. An often less preferable option is to include provisions in your will for the establishment of a trust at your death. This type of trust will not help if you become disabled because it will not go into effect until your death. In addition, it will not be funded until your will has been probated, a process that may be expensive and time-consuming. Also, by creating the trust through your will, the management and distribution of funds may also be subject to ongoing oversight by the probate court.
The trust terms can specify the purposes for which the trust funds can be used, how and when the trustee should make distributions, and, if you so choose, the age at which you would like the trust funds to be fully transferred to your children—which does not have to be at the age of majority. You can choose the type of distributions you believe are best for your children: Some parents give the trustee the discretion to make distributions for specific purposes, such as the children’s health, maintenance, education, or support, or even for a down payment on a house or to provide funding for the child to start up a business. Others give the trustee complete discretion in making distributions for the benefit of the children. The timing of distributions, which can be designed to meet your particular goals, can also be spelled out in the trust.
If you have more than one child, you can specify whether the distributions should be for equal amounts or if a greater percentage of the money in the trust should be distributed for the benefit of certain children, e.g., children with special needs or younger children who did not get as much financial assistance from you while you were alive. In addition, you can address specific issues that may be of concern. For example, you can indicate whether you would like a home you own to be sold, or if you prefer for the children’s guardian to move into the home so they will not have to relocate. If your home is not sold, the terms of the trust can also indicate who will be responsible for paying the real estate taxes, utility bills, and maintenance expenses. The home is a particularly complex issue to consider, as there are often emotional ties and memories connected to it, as well as ongoing costs, and frequently, a mortgage. As experienced estate planning attorneys, we can help you think through the best course of action for your family.
If you have named someone other than a grandparent (your parent) to be your children’s guardian, it is important to specify in your estate planning documents whether you wish the grandparents to be able to visit with your children.
While you are living, it is your fundamental constitutional right to determine whether--and how often-- your children will see your parents (their grandparents). However, when you pass away, grandparents may have a right to see your children. Every state has enacted a grandparent visitation statute, and they vary regarding their permissiveness or restrictiveness. Some statutes only allow grandparents to obtain a visitation order when the children’s parents have separated, divorced, or one or both of them have died. Others are less restrictive1 and allow grandparents to obtain a visitation order even if the parents are still married and are both still living. What both types of statutes have in common is that they both require visitation not to interfere in the parent-child relationship and to be in the best interests of the child.
As a single parent, you can gain substantial peace of mind by creating an estate plan that ensures your children will be properly cared for—both physically and financially—in the unlikely event that something happens to you while they are still too young to take care of themselves. Please call the Anderson, Dorn & Rader office at (775) 823-9455 to schedule a consultation.
1 Some of these less restrictive statutes have been found to be an unconstitutional infringement on the fundamental right of parents to control the upbringing of their children.
If you have any children under the age of 18, it is important that you at least have a Last Will and Testament ("Will"), including provisions regarding guardianship of your children, should anything happen to you. Legal guardianship provisions for minor children are an extremely important part of estate planning for young families. There are certain provisions for guardianship Nevada parents need to be aware of when making their estate plan.
A Last Will and Testament is basically used to make dispositions of property, which do not take place until your death. Another purpose of a Will is to appoint someone to manage your estate and to appoint someone as guardian of your minor children. Without a Will, your property will be distributed to your family, following the laws of intestate succession in your state. Note that intestacy laws have basically remained unchanged for a very long time, and those laws may not take into consideration today's issues with the modern family (most importantly blended families). Your closest family members usually receive equal shares depending on the law's pre-determined priority system.
When one spouse or parent dies, the surviving spouse or parent will automatically be the child's legal guardian unless that person's parental rights have already been terminated. Should both parents die at the same time, or nearly the same time, any guardians named in a Will would become responsible for the child's care. A Will must be submitted to probate court, and the probate judge will oversee the entire process, including the approval (or disapproval) of the guardians named in the Will.
When you are considering who should be named as legal guardian for your children, take into consideration the age, health, location, and general personalities/parenting styles of the potential individuals. You must also recognize that these factors will probably change in the future. For this reason, it is a good idea to select both primary and secondary guardians, should there be anything preventing your primary guardians from serving in that role.
Permanent guardianship in a Will is approved by a court, which may take weeks or even months. Nevada allows parents to appoint short-term guardians to care for minor children for a maximum of six months. This ensures that the children do not have to spend any time in custody (child protective services, foster care, or other) while the permanent guardianship is being approved. In order to protect the children, there must be a separate legal document appointing short-term guardians.
One of the common reasons parents put off planning for guardianship of their children is that they are "looking for the right person." Of course, you want someone who will raise your children with the same values you hold, but finding the perfect fit may not be possible. In fact, it is not very likely. Instead, you need to find someone who has a similar belief system and who is also willing to instill in your children the values you hold. It takes some discussion and some compromise. But you cannot put off guardianship planning simply because you haven't found the perfect guardian yet. If you wait too late, a judge will make that decision for you. You can always re-execute a new Will, or change the Will, if you decide to change the appointment of guardians.
In order to properly care for your children, your guardians will need to have access to financial assets, as well. This can be established a number of ways, but is most effective through a Trust. A Trust may be created during your life (a Living Trust) or upon your death (a Testamentary Trust). Within the Trust, there are a few key things to consider. Who do you want to manage the money (i.e. is the guardian in charge of raising the children also responsible for the money, or do you separate those responsibilities)? Do you want the children to have equal shares regardless of circumstances, or would you like a Common Pot to be available for all of your children until they reach a certain age? Do you create a Living Trust and keep the Trust administration private, or do you create a Testamentary Trust and require judicial oversight of the Trust? Many of these questions are hard to answer on your own, and it is best to discuss these matters with an attorney in doing your estate planning.
Unfortunately, you cannot rely on something as informal as a letter or email to establish your choice for guardian of your minor children. No matter how clear your choice may be spelled out in a letter or email, it is not legally binding on the court. A judge could take that informal statement into consideration, but there could be so many issues of credibility for the judge to wade through, especially if someone challenges the appointment. Basically, if you take the time to choose someone and write it down, why not take the next step of making it official?
If you do not include guardianship provisions in your Will, the appointment of a legal guardian will be made by the probate court without any input or guidance from the parents. Although it is the judge's responsibility to ensure the best interests of the child are met, the decision may not coincide with your own wishes. That is why creating an estate plan is the best solution for you and your family.
Attend a FREE Webinar! If you have questions regarding guardianship, or any other estate planning needs, please contact Anderson, Dorn & Rader, Ltd., either online or by calling us at (775) 823-9455.
Families with minor children must do at least some basic estate planning, as soon as possible, in order to be prepared for the unexpected. Having a good plan in place will answer some very important questions, not only for your family but for the court, in the event you are not around to take care of your kids. We present three of the biggest questions families with minor children should consider in their estate planning.
By far the most important question to be answered is who will raise your children if something happens to you. That is a decision that has the potential to significantly shape your children’s lives. The guardians chosen will be responsible for your children's education, lifestyle, and general well being.
In choosing a guardian, most parents will want to consider a number of factors, including parenting philosophies, religious beliefs, location, discipline styles, personal values, personality types, and temperament. Money can be a factor, but should not be the sole factor in choosing a guardian; it is the parents' responsibility to provide for their children financially, even after their death.
Once the decision is made, those details need to be incorporated into your estate plan. This serves more than one purpose. Of course, planning ahead for the unexpected will put your mind at ease. But it will also keep your family from fighting about who should have your kids. The natural affinity that parents feel for their own children will likely cause great disputes between the grandparents and/or in-laws about who would do a better job raising your children. The proper estate plan can head off a bitter custody fight.
Your estate plan should include multiple guardianship roles. First, your plan should appoint a short-term, or emergency, guardian. This is generally someone close in proximity who can pick up the children in the event of emergency. A short-term guardian may be appointed for a maximum of six months. If a guardian is needed for longer than six months, your plan should also appoint a permanent guardian. The permanent guardian is the person responsible for raising your children. The permanent guardian and short-term guardian need not be the same person, and different factors should be considered when naming each. Your estate plan may also appoint a separate health-care guardian who will have the power to make medical decisions for the children.
Without a general estate plan, your minor children would still receive the asset from your estate through the laws of intestate succession in your state. The problem is, these assets will not be managed by someone that you choose. Instead, they will be overseen by the court. To receive any assets or funds, someone will need to petition the court on behalf of your child.
Instead, you can create a trust which will name the trustee of your choice to oversee your children’s money until they are mature enough to handle it themselves. The trust will only go into effect if certain conditions are met, such as the death of both parents. The trustee of the funds may be the same person as the guardian of your children, but many people find it beneficial (and risk-averse) to separate the role of guardian and trustee to avoid any concerns that the guardian will spend your children's inheritance.
As stated above, without a named trustee to manage your children’s finances, the court will manage the estate. One problem, for most parents, is that the court automatically loses the authority to manage your children’s money once they have reached the age of majority in your state. In some states, including Nevada, a child will take over the inheritance once they reach the age of 18; and you should ask yourself, "Is my 18 year old ready to walk into a large lump sum of money?" Many parents may not agree that their children are wise or mature enough to properly manage those funds. When you create a plan yourself, you can indicate when the funds should be released to your children - whether you decide they will be financially mature at 25 years of age, 30 years of age, or older.
While planning to deal with guardianship and finances for your children is important, it's just as important to make sure you have all your other ducks in a row with your estate planning. A well drafted estate plan should plan for issues that are important to you: avoiding taxes, allowing for flexibility, appointing fiduciaries, addressing health care issues, etc. The first step in the estate plan of families with minor children is to think about the children, but it's also important to plan for issues that arise as to the parents as well.
These are just a few issues families with minor children may face in the estate planning process. Discuss these issues with your estate planning attorney. If you have questions regarding planning for families with minor children, or any other estate planning needs, please contact Anderson, Dorn & Rader, Ltd., either online or by calling us at (775) 823-9455.
You may think it is relatively easy to name the people you want to be beneficiaries of your estate upon your death. Naming your children as beneficiaries is a no-brainer, right? But the method you use to transfer your assets to your children may differ depending on certain considerations: such as whether your children are minors or adults, or whether or not any of your children have special needs. There may be concerns that the guardian appointed to care for your minor children may not have the expertise to manage a large inheritance on behalf of your children. Further, special needs beneficiaries will need additional support throughout their lives, even as adults. Here is a short summary of some of the common issues related to naming your children as beneficiaries of your estate.
Of course, the first consideration is appointing a guardian for your minor children. The decision as to whom you should appoint as guardian for your minor children is a difficult one and should not be taken lightly. If you are having difficulty choosing a guardian, we recommend you read some of our other blog posts and essays on guardianship of minor children. If your guardian does not live locally, then parents should also consider a local short-term guardian to make sure the children don't spend a single moment in custody of the State or foster care.
Providing for your children financially
Once a permanent and short-term guardian have been appointed in the proper legal documents, the very next step should be making sure your children will be provided for financially. In addition to leaving your assets to them, you should also consider life insurance which can replace the parental income that would have been available to support them until adulthood. Retirement plans may be left to your children directly, but doing so may cause some unintended problems (discussed further, below). The manner in which you leave your assets to your children will depend upon your goals and concerns. Trusts are a very beneficial way to pass on assets to minor children because they allow more control of those assets, even after your death, for children (and guardians) who are not mature enough to handle their own finances.
Planning for your child’s education
Establishing a 529 plan for your child’s education is a great way to be prepared. A 529 plan is a specific type of education savings plan, operated by a state or educational institution, for the purpose of helping families set aside funds for college. It is called a 529 plan because of Section 529 of the Internal Revenue Code, which created this specific savings plan in 1996. A 529 plan allows you to maintain general control over the account until the money is withdrawn to pay your child’s education expenses. The only thing you need to do, for estate planning purposes, is designate who will take over management of this account after your death.
How can a child inherit from your retirement plan?
A spouse can automatically receive the benefit of your retirement plan after your death, whether a 401(k), 403(b), IRA, TSP, or other qualified plan. The retirement plan benefits received by your spouse maintain the same protections from creditors and bankruptcy. However, your children do not have the option of rolling over the assets in your retirement plan into their own IRA. Non-spouse beneficiaries generally must begin receiving the minimum required distributions soon after your death from an Inherited IRA. These distributions are based on their age and are taxable income to your beneficiaries as those funds are distributed. The entire balance of those funds are available to be distributed (and taxed) immediately, which eliminates any financial benefit from stretching out distributions and could mean that your children waste all of their inheritance by spending it. In 2014 the Supreme Court of the United States decided Clark v. Rameker, which held that inherited IRAs for non-spouse beneficiaries are not protected from creditors the way that they are protected for spouses. Careful considerations need to be made when deciding how to leave retirement plan benefits to your children, and a Retirement Plan Trust is a very beneficial way to protect those assets.
Children from a previous marriage
For some blended families, a decision has to be made as to who needs financial security more. If you have children from a previous marriage, it is wise to weigh your desire to provide income and financial security for your current spouse, with your desire to provide an inheritance to your children. There are many options to accomplish these goals; one way to accomplish both is to create a QTIP trust or bypass trust. This tool gives you the option of providing for a surviving spouse, while the remainder goes to your children, including those from a previous marriage.
If you have questions regarding guardianship, beneficiaries, or any other estate planning needs, please contact Anderson, Dorn & Rader, Ltd., either online or by calling us at (775) 823-9455.
Creating an estate plan to protect your minor children is one of the most important things you will ever do. When you and your spouse have separated or divorced, creating or revising your estate plan is not generally top of mind. However, if you have minor children it is in their best interests for you to discuss your estate planning with your ex-spouse.
Necessary Revisions to an Estate Plan Following Divorce
There are three important estate planning issues that need to be considered after a divorce: guardianship, financial inheritance and the possibility of remarriage. All of these issues will likely require revisions to an existing estate plan. If you have not created an estate plan yet, then you need to establish one with these three issues in mind.
Guardianship Issues Following Divorce
If one parent passes away, guardianship automatically passes to the surviving biological parent, regardless of the status of custody, unless the surviving parent is determined to be unfit. However, the possibility that your minor child may need a non-parental guardian must also be considered. For this reason, it is important to discuss the nomination of a guardian with your ex-spouse. If you can come to an agreement on this issue and include it in your estate plan, everyone will feel more secure about your child's future.
Your Minor Child's Financial Inheritance
A major concern for many divorced couples is who will have control over their estate when the child inherits from a deceased parent. Obviously, a minor child is unequipped and lacks legal capacity to handle their own finances. It is the child's guardian who is typically in charge of an inheritance. When that guardian will be the ex-spouse, most couples have a problem with that idea. The solution is to place your child’s inheritance in trust until he or she reaches an appropriate age when you feel he or she should be ready to properly manage the inheritance. Until the child reaches that age a third-party would be selected as trustee who will have the responsibility of maintaining the trust and distributing the income and assets either to the guardian for the benefit of your child, or directly to vendors and service providers for the benefit of the minor child. Because your trustee and guardian will often be required to work together, and to try to avoid a designation of a guardian that conflicts with that of your ex-spouse, it would be best for you and your ex-spouse to agree on someone with whom you both are comfortable.
Planning for the Possibility of Remarriage
When couples get married, in most cases their finances become commingled at least to some degree. The same is true for a subsequent marriage following divorce. If you fail to include provisions in your estate plan for your minor children, all or most of your assets may automatically pass to your new spouse upon your death, leaving your child with insufficient recourses to provide for his or her health, education, maintenance and support. This can be prevented by simply including the proper provisions in your estate plan.
If you have questions regarding divorce, or any other estate planning needs involving minor children, please contact Anderson, Dorn & Rader, Ltd., either online or by calling us at (775) 823-9455.
If you have any children under the age of 18, it is important that you at least have a will, including provisions designating who you would want to be the guardian(s) of your children, should anything happen to you. Legal guardianship provisions for minor children are an important part of estate planning.
The basics of the last will and testament
A last will and testament is basically used to make dispositions of your property at the time of your death. Another purpose of a will is to appoint someone to manage your estate and to appoint someone as guardian of your minor children. Without a will, your property will be distributed to your family following the laws of intestate succession in your state. Your closest relatives usually receive equal shares depending on the law's pre-determined priority system.
Establishing legal guardianship of minors with your will
When one spouse or parent dies, the surviving spouse or parent will automatically be the child's legal guardian unless that person's parental rights have already been terminated. Should both parents die at the same time, or nearly the same time, a guardian named in a will would become responsible for the child's care absent a court's determination that it is not in the child's best interest to have legal guardianship awarded to the person you designated. The presumption under the law is that the person you designate as your desired guardian of your minor children is the most appropriate choice.
Be sure to consider both present and future circumstances
When you are considering who should be named as legal guardian for your children, take into consideration the age, health and location of the potential individuals. You must also recognize that these factors will probably change in the future. For this reason, it is a good idea to select both primary and secondary guardians, should there be anything preventing your primary guardians from serving in that role. These designations should be reviewed at least every 2 years.
Make sure the legal guardians will have everything they need
In order to properly care for your children after you are gone your guardians will need to have access to financial assets, as well. Generally, it is most advantageous to accomplish this through the creation of a revocable living trust that is funded while you are alive. Using this technique your assets avoid the probate process upon your death and the person you designate as the successor trustee under the trust has access to the financial assets and the authority to make distributions to or for the benefit of your minor children without the probate court's involvement. The successor trustee may be the person you designate as your guardian, or it could be someone else if you feel someone other than the guardian is best suited to manage the financial decision-making. This can also be established through a testamentary trust created under a will, but then the assets would need to go through probate and the court will retain ongoing jurisdiction over the trust. The costs associated with administering a testamentary trust are generally much higher than those involved with the administration of a living trust after your death.
What happens if you do not nominate a guardian?
If you do not include guardianship provisions in your will, or establish a trust, the appointment of a legal guardian will be made by the probate court. Although it is the judge's responsibility to ensure the best interests of the child are met, the decision may not coincide with your own wishes. That is why being proactive and creating an estate plan is the best solution for you and your family.
If you have questions regarding legal guardianship, or any other estate planning needs, please contact Anderson, Dorn & Rader, Ltd., either online or by calling us at (775) 823-9455.
Clients with minor children find that one of the hardest decisions in the estate planning process is how to choose a person or family to care for those children in the unfortunate event of the parents' incapacity or death. Here are some steps that might help in this decision making process.
The easiest place to start is to make a list of anyone and everyone who could be a good guardian for your minor children. Ask yourself, "Would this person/family provide a better home for our children than the State?" This is a good point of reference, since the alternative to naming your own guardian is to have the children placed under State supervision (such as foster care) until a guardian can be named (which may not be someone that you'd prefer). This list could contain dozen of names, but ideally should have at least 4 or 5 people, couples, or families that you trust with the care of your children. Make sure to think beyond immediate family, such as brothers and sisters. Many clients choose cousins, aunts and uncles, grandparents, and friends as guardians. Try not to let money matters affect your list, unless the potential guardian lacks basic money management skills, since things such as life insurance can ensure your children's material well being.
Make a second list of those things that are important to you. Do you want your child to be raised with a certain religious belief? Is it important that your guardian be of a certain age, or that they have a certain threshold for patience and maturity? What is important to you in looking to your guardian's child-rearing philosophy? Is marital or family status of a guardian important? Your guardian will be a role model for your children, so it's important that you understand what that person to be. You may be able to exert some influence on your guardian's behavior in raising your children (they might be willing to go to church with your child, if they don't already, they might change some social and moral habits to accommodate your parenting wishes, etc.). However, there are some characteristics that will not change; a person's integrity and financial management skills are unlikely to change by becoming a guardian.
Congratulations! Once you have completed these first two steps, you have a list of potential people that you support raising your children, and you have a list of factors that are important to you in how you want your children to be raised and what you look for in a guardian. Looking at these two lists, you should be able to narrow down the list of candidates to make the decision much easier. While this is an easy step for many families, this may be difficult if there is a disagreement between the parents. Mom may want her sister to be the guardian, while Dad may want his cousin's family to care for the children. Consensus is important! Use this as an opportunity to have a much deeper conversation about the people and values, and try to understand each other's position in order to find a solution that you both feel good about. Remember - it is important to have more than one potential guardian on your list, as successor guardians should be named in your estate planning documents.
While it's not a legal obligation to clear this decision with the guardian of your choice, it's a good idea to have a conversation with them about it. This can be an opportunity to really develop deeper relationships. Many times, we see that those family members or friends asked to be guardians will want to take a more active role in the life of the child, as a god-parent would in some religions. Ask the guardian if they are willing to support the care of your children, and start discussing what that family structure would look like. This is a good place to discuss the list of values that are important to you (the list that you wrote in Step 2, above). Focus on what you want for the growth and development or your children as you communicate this with your guardian.
The worst mistake you can make is to go through this process and to avoid the final step of drafting the proper language in your estate plan. Make sure to meet with your attorney to ensure that the guardian is nominated in your trust or will. Try to avoid off-the-shelf guardianship forms, as they likely don't address state-specific benefits. For example, in Nevada a person can appoint a temporary guardian to take care of the kids while the permanent guardianship is settled - which means that your minor children may avoid being placed in the custody of the state for even a minute.
There are other times when certain legal forms should be considered for minor children. For example, if your minor child is travelling within the U.S. under the care of someone else, or if your minor child is travelling outside the U.S. with only one parent, you can have your attorney draft the proper Certification of Consent for Minor's Travel forms to make this process easier.
At Anderson, Dorn, & Rader, Ltd., we regularly help clients handle these issues where there are minor children involved. If you reside in Nevada or California, please feel free to reach out to us to discuss these issues by calling our office at (775) 823-9455.
Many parents include revocable living trusts in their overall estate plan. Included in their trust is a sub-trust for minor children that can protect the inheritance. It is the best way to ensure that your child will inherit your assets, while protecting those assets until your child receives distribution. Such a trust will also identify a trustee who will be responsible for managing, investing and distributing those assets, in compliance with your specific instructions.
What happens if you do not have a trust?
If you do not have an appropriate plan in place, the court will determine what happens to your minor child upon your death. That also includes naming a financial guardian to manage any assets your child will receive as an inheritance. Another issue to consider is that, under the law, all of those assets will be turned over to your children on his or her 18th birthday, with no more supervision. Most parents, if given a choice, would not trust their young adult with a substantial amount of money or assets.
The benefits of establishing a trust for your minor child
By establishing a trust for your minor child, you are given the opportunity to provide more detailed instructions regarding the management and use of the trust assets. First, you have the ability to choose who will manage the assets on behalf of your child, instead of leaving this decision to the court. Second, you get to determine how and when you want your child to receive the assets. So, for instance, you may decide that you don’t want your child to have full access to the trust funds until age 30, or upon graduation from college. Until your specified conditions have been met, the trustee you named will continue to manage the assets, which can be used for your child’s benefit, such as paying for care and educational expenses. A living trust plan will allow your family to avoid the time consuming and expensive probate process, while still ensuring that the funds are readily available for your children’s care, as needed.
A trust can prevent accidental disinheritance
Blended families are very common these days. Having a trust-based estate plan can protect your child and his or her assets, if your surviving spouse ever remarries. Accidental disinheritance would be tragic for your child, and it can be avoided. Consider the following situation. Tom and Sharon create an estate plan together that leaves everything to each other and then to their children. Tom dies, leaving everything to Sharon. A couple of years later, Sharon meets Frank and remarries.
Without thinking about the consequences, Sharon and Frank execute a new estate plan that leaves everything to each other and then to their respective children from their prior marriages. What happens if Sharon dies before Frank? Everything passes to Frank, who has no obligation to leave anything to Tom and Sharon's children. In other words, Sharon accidentally disinherited her own children. With the proper trust provisions, Tom and Sharon can avoid this situation and ensure that their children are not disinherited.
If you have questions regarding trusts for minor children, or any other estate planning needs, please contact Anderson, Dorn & Rader, Ltd., either online or by calling us at (775) 823-9455.
Estate plans are very important for many different reasons. Typically, an estate plan includes a will or trust, a power of attorney and advance medical directives. But, for a young family with small children, there are other distinct issues that should be addressed in an estate plan. The primary concern becomes, what will happen to the children if the parents were to die simultaneously. Couples with minor children need to take special care to plan for this unfortunate event.
Have you considered who will care for your children if you and your spouse died simultaneously? Whether in a car accident, plane crash, or some other unforeseen tragedy, your minor children may be left with no one, and the state may have to step in. Without your guidance, there is no guarantee that they will end up with the best person to care for them.
If you want to have a say in who that person will be, naming a guardian in your Will is the best way to establish your wishes. Nevada has special laws that allow you to appoint a temporary guardian while the Court approves the guardianship to ensure that your children do not spend a single minute in the custody of the State.
Without an estate plan, your child will inherit his or her share of both parents’ estate, to be held in an estate of the minor account under Nevada's Uniform Act on Transfers to Minors. The guardian will be able to request distributions of the money in order to provide care for the child. Then, once the child has reached the age of majority in the state where he or she lives, the remaining assets of the estate will be distributed directly to the child. This would be true, regardless of whether or not the child is capable of managing the money.
Trusts for minor children
Parents can create a trust for their minor children, as part of their overall estate plan, which will hold any assets that are transferred to the children while they are still minors. There can be a provision in the parents’ will that creates the trust for the minor children, and also names the trustee to invest, distribute and manage the assets. This will be done for the benefit of the minor children, in accordance with the terms of the trust.
Typical distributions from a minor trust
The most common types of distributions from trusts for minors are for healthcare, education, general maintenance and support. Leaving assets in trust provides great tax benefits, asset protection, and divorce protection for your children throughout their lifetime. In Nevada, these benefits can be passed down to your grandchildren, great-grandchildren, great-great-grandchildren... for up to 365 years. Alternatively, the trust can be designed to terminate when the child reaches a specific age, not necessarily the age of majority. Another way to distribute the funds is by increments at specific ages. For example, the child can receive 1/3 of the trust at age 21, another 1/3 at age 30 and the final portion at age 35.
Overall, a primary goal of estate planning for families with small children, is to ensure that the child will be placed with an appropriate guardian and cared for financially until adulthood.
If you have questions regarding trusts for minors, or any other estate planning needs, please contact Anderson, Dorn & Rader, Ltd., either online or by calling us at (775) 823-9455.