1. Have you nominated guardians for your children?
If you have children under 18, you must nominate guardians for your children. Your nominations should be spelled-out clearly in your Last Will & Testament.
If both parents go missing, die, or become incapacitated, then a judge will appoint the legal guardian. But if a contested guardianship proceeding arises (which could happen, for example, when the surviving grandparents disagree strongly over custody) then the result could be highly divisive, expensive, and potentially damaging emotionally to the children. It borders on “parental malpractice” not to do something about this risk, even though it is a remote risk.
Fortunately, the act of nominating a legal guardian for your children will, in virtually all cases, be respected and conclusive for the judge who is appointing the legal guardian.
2. Have you properly “funded” your Living Trust?
The number one reason that Estate Plans fail is that trusts are not properly “funded.” Legal title to your home, your investment accounts and all of your major assets must be formally transferred into your Living Trust, in order to avoid the expenses and delays of a public Probate.
Especially for our clients who have “hard to fund” assets, our paralegals can ensure that your trust funding is complete now, and will stay complete in the years to come.
Our firm will not prepare (or renew) a Living Trust, unless the client also authorizes us to transfer substantial estate assets into trust. Therefore, our flat fees always include legal services related to trust funding.
3. Will your durable Power of Attorney be respected?
Most financial institutions will not respect a “stale” or “overly broad” Power of Attorney. (That is why our LegacyPlan™ clients receive a new, highly detailed, durable Power of Attorney every two years, with no additional fee [link].)
If you became incapacitated (temporarily or permanently) for any reason, but without an effective Power of Attorney, then a court proceeding would be needed to appoint your conservator.
A conservatorship proceeding is a lawsuit brought against you or your spouse, usually by a family member, who must prove (in public) that you are either too incompetent or too incapacitated to remain in legal control of your property and affairs. It is an expensive, intrusive and potentially emotionally damaging proceeding.
The avoidance of all conservatorship proceedings, now and into the future, will always be a key pillar to any quality Estate Plan.
4. Have you minimized (or eliminated) all death taxes?
The administration of an estate can be an anxious time for a family. Among other things, a lot of property and assets are changing hands – and the government is watching.
The estate tax, gift taxes, accelerated income taxes, unnecessary capital gains, real estate reassessments … have you done everything legally and ethically possible to minimize or eliminate these risks? (For estates that are exposed to death taxes, typically forty to sixty percent of their value is at stake!)
Tax laws are constantly changing. Also, over the years, the value and mix of your assets are also constantly changing. We have the expertise to minimize or eliminate your exposure to death taxes. And for our LegacyPlan clients, we keep it that way.
5. Is your Asset Protection Planning adequate?
Does your planning place your spouse and children unnecessarily at risk from “creditors and predators,” or perhaps from themselves?
A spousal remarriage or a child’s divorce can lead to the loss of half of an estate’s value. A judgment creditor or a bankruptcy can seriously deplete or literally destroy an estate. And it is clearly a mistake to make an outright gift to any heir who is not yet sufficiently mature to manage the inheritance, or who may have compulsive or self-destructive behaviors.
We counsel our clients on a wide range of asset protection strategies, from the relatively simple (for example, an appropriately strong remarriage clause) to the complex (for example, an array of FLPs, LLCs, domestic asset protection trusts and offshore trusts).
Of course, quality Asset Protection Planning is tailored to each family situation and to each mix of assets. It is also dynamic planning, because lives, situations and assets are constantly changing. (That is why our LegacyPlan clients receive annual reviews and annual trust amendments – at no additional fee – so they can easily maintain a truly loving, complete, efficient and effective Estate Plan.)
6. Does your Estate Plan reflect your family’s Legacy, Heritage and Values?
Do you want your estate planning to further your family’s love and cohesion? Otherwise, for many families, will “benign neglect” sow the seeds of misunderstandings, resentment and possibly, serious legal trouble?
Our firm takes Legacy Planning seriously.
We help our clients better appreciate why legacies are not made overnight, nor protected exclusively by legal means.
An excellent attorney-client relationship is a key to high quality Legacy Planning.
Has your Estate Plan been lovingly designed, with careful attention to your concerns and aspirations, so that it meets all of the special needs of your loved ones, and maintains your family heritage and values?
7. Are you (and a good paralegal) keeping your “ducks in a row?” Or will you be leaving your family “a big mess”?
A “nightmare estate” can ruin a legacy and cost a bundle.