2014 Most Read Wills & Estate Planning Articles May Surprise You

Welcome to my first post of 2015!  In case you’re curious, below are the top ten most read articles in 2014 over at my Wills & Estate Planning Guidesite on About.com:

  1. See How the Federal Estate Tax Exemption Has Changed Since 1997
  2. How to Find a Deceased Person’s Will
  3. See How the Gift Tax Annual Exclusion Has Changed Since 1997
  4. Will Your Inheritance Cost You in Taxes?
  5. State Estate Tax and Exemption Chart
  6. 2014 State Death Tax Exemption and Top Tax Rate Chart
  7. State Inheritance Tax Chart
  8. How to Locate Online Probate Court Dockets and Request Copies of Documents
  9. What is a Revocable Living Trust?
  10. What Are the Grounds for Contesting a Will?

If you’re interested in reading any of the articles, simply click on the article name.

Well, that is certainly a hodge podge of topics, isn’t it?  – estate, inheritance and gift taxes, wills, probate dockets, revocable living trusts, will contests – but then again, estate planning covers a hodge podge of topics, that’s why my Guidesite currently has 19 different categories!

The final count on page views for my Wills & Estate Planning Guidesite in 2014 topped 8.4 million, so thanks to all of my readers for reading and my newsletter subscribers for subscribing – if you’re not a newsletter subscriber yet, you can sign up here:  Weekly Wills & Estate Planning Newsletter.

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Can You Establish the Validity of Your Will or Trust Before You Die?

If you’ve made the tough decision to disinherit a child or other relative in your estate plan, then chances are you’ve increased the likelihood that your decision will be challenged after you die.  But what if you could head off the challenge before you die?  A handful of U.S. states now allow for just that – a legal process that lets you validate your will or trust while you’re still alive and kicking – you can do this in Alaska, Arkansas, Delaware, New Hampshire (which just passed its law in July 2014), Nevada, North Dakota and Ohio.

While the pre-death process for validating a will or trust varies, in general the steps involved are as follows:

  1. Named beneficiaries of the will or trust and disinherited heirs are notified of the existence of the will or trust and its contents.
  2. Named beneficiaries and disinherited heirs then have a limited number of days (from 30 to 120 days depending on state law) to bring a legal court challenge to the will or trust.
  3. If a legal challenge is not filed within the applicable time period, then the named beneficiaries and disinherited heirs are barred from challenging the contents of the will or trust after the testator or trustmaker dies.

The driving theory behind this process questions why you should have to wait until after your death to let your family challenge your estate planning decisions since you won’t be around to defend your actions.  Instead, you should be able to force the issue while you’re alive and well and fully capable of defending your decisions.

But while the pre-death validation of an estate plan may look good on paper, there are several questions about the process that remain unanswered:

  • What happens if you go through the process but later decide that you want to change your estate plan?  Then you’ll most likely have to go through the process again, and if you don’t then you’ll leave the door open for a post-death challenge of the revised plan.
  • Will the pre-death process carried out in a state that permits it stand up in a state that doesn’t?  For example, you could go through the process in one of the states that only allow residents to take advantage of it, but then move to a state that doesn’t recognize it.
  • What about real estate that you own in a state that doesn’t recognize the process?  The laws of the state where real estate is located generally dictate what happens to the property after death, so while your disgruntled heirs will be barred from challenging your final wishes in your home state, they may still be able to challenge the distribution of your out of state real estate after your death.
  • What if the person who pre-validates their estate plan later marries, divorces, or has more children, or what if a beneficiary named in the estate plan dies?  Will the plan need to be validated again because a new beneficiary has come into play?

These are just a few examples of how the pre-death validation of a will or trust could end up being a waste of time and money.  So while these laws may look good on paper, the process appears to have quite a few kinks that need to be worked out before it becomes a practical solution to head off a will or trust contest.

3 Tips for Making Your Estate Plan Your Decision

Many people struggle with all of the decisions that they have to make when putting together their estate plan: Who should get what? When should they get it? Who shouldn’t get anything? Who should be the executor? Who should be the trustee?

All of these decisions can be overwhelming, even for someone who has what is considered a “normal” family, but they don’t have to be.  In the wise words of Jerry Cantrell of Alice in Chains, it’s your decision.

If you’re stressed out about how to plan your estate, then don’t despair.  Here are three tips for making your estate plan your way:

Tip #1 – Don’t be afraid to disinherit someone. It’s your money, so you can choose to leave it, or not leave it, to whomever you want. But beware – being bullied into making your estate plan a certain way by a certain individual and not the way you really want it (for instance, leaving everything to one child to the exclusion of others at the insistence of that one child) will result in family discord.  If you really want to disinherit someone, then that’s your prerogative, but if someone bullies you into disinheriting someone else, then in extreme cases this could amount to “undue influence” and lead to an ugly will or trust contest. If you truly want to disinherit someone, then work closely with your estate planning attorney to insure that not only will your final wishes be carried out, but your plan will be bullet proof from challenges.

Tip #2 – Choose your executor and trustee wisely. Here are the traits you should look for in your executor and trustee:  loyal, fair, practical, trustworthy, organized and tough.  If you choose a person who has most of these traits, then your final wishes will be fulfilled, but if you choose a person who has only one or two of these traits, then your final wishes will take a back seat to their own agenda.  Better yet, choose a corporate trustee, such as a bank or trust company, to put these important jobs in the hands of professionals.  Otherwise it may be way too easy for Uncle Bob to skim some off of the top or for your loved ones to convince Uncle Bob to disregard your wishes.

Tip #3 – Listen to your estate planning attorney.   While a good estate planning attorney will listen intently so that he or she can learn about your greatest concerns and challenges when it comes to planning your estate, you should also listen to your estate planning attorney because he or she can offer some good advice and solutions to ease those concerns and overcome the challenges. And while sometimes what your estate planning attorney says may not be what you want to hear, your attorney’s advice, which comes from years of experience in similar situations, may very well head off a family feud or a will or trust contest.