These figures are based on a simple uncontested probate with 50% of the property being real estate and 50% is liquid assets.

        Litigation and will contests will be billed as additional items on an hourly basis. Ancillary probate (probate of property in another state) will be billed separately by the attorney in that state.

        *Executorās fees are calculated on the percentage of personal property that passes under a will. For purposes of this chart, 50% of the gross estate is considered personal property.


WHY YOU SHOULD AVOID JOINT OWNERSHIP

Joint ownership is an all too common planning technique. The concept of joint ownership is simple, the survivor takes the property.

YOU LOSE CONTROL. One of the basic tenants of estate planning is to maintain control of your property during your lifetime, in the event of your incapacity, and at your death. If you take property jointly, you lose control of your property. It is necessary to have the other joint tenant sign in order to convey real estate. What if they refuse?

CREDITORāS RIGHTS. A common planning solution involves titling property jointly in the names of parents and children. Several of the attorneys in our firm are bankruptcy lawyers and they have assured me that in the event one of the children becomes bankrupt, the trustee in bankruptcy can seize a portion of the jointly held property to satisfy the childās debts.

DIVORCE: If the property is held jointly with the children, what happens if one child is sued for divorce? The childās spouse may be able to claim a portion of that jointly held property!

INCOMPETENCE: If one of the joint owners becomes incompetent, you are limited to three undesirable choices: (1) You can wait until that joint owner recovers, which may not happen; (2) You can wait until that joint owner dies, which will eventually happen, but is hard to predict; or (3) You can have the joint owner declared incompetent. A declaration of incompetence requires a trip to Probate Court, a hearing, and annual accountings to the Court. None of these choices represents good planning.

UNFORESEEN RESULTS: Letās imagine a family with three children. Each of these three children has one child, so there are three grandchildren. The property is held in joint ownership between the grandparents and the three children. What happens when one of the children passes away? The survivors get the property, so one of the grandchildren has been cut out! This is undoubtedly not the result that was intended, but it is the way joint ownership operates.

WILLS DO NOT MATTER: What if all the property is held in joint ownership between husband and wife? Husband has a will that directs half of his property should pass to his son by a prior marriage. When husband dies, the property immediately vests in the wife. Son takes nothing because nothing is passed under the will.


WHAT IS A LIVING TRUST?

A living trust is a private, legal contract that contains your instructions to the person youāve chosen to be your successor trustee. These instructions explain what you want done with your estate when you die or become incapacitated.
 

  

MOST FREQUENTLY ASKED QUESTIONS ABOUT LIVING TRUSTS

Q.        If trusts are so wonderful, why donāt lawyers talk about them more?

A.        All lawyers learn in law school how to write a will, but not every lawyer learns about trusts and trust law. Common sense tells you an attorney wonāt advise you to do something that they are not familiar with.


Q.        Do you have to be wealthy to need a living trust?

A.        No. Living trusts are right for people in virtually all income brackets. Lawyers have created the myth that trusts are expensive to execute. Living trusts are a great bargain, especially when you consider how much will be saved in probate costs down the line.


Q.        Canāt I avoid probate by putting my heirsā names on my property?

A.        Yes, but this can be very dangerous. When you put someoneās name on your property, you are giving them ownership in your property. When someone owns part of your property, you are giving up control and putting your property at risk. What if your co-owner declares bankruptcy, gets a divorce, or becomes involved in a lawsuit?


Q.        Is a living trust as valid as a will?

A.        Yes. Living trusts are valid in all 50 states. Living trusts are legal documents that contain your instructions just like a will, but a will must be probated and a living trust is not probated.

        Living trusts are actually older than wills. Trusts date back to the Eleventh Century, and have always been a part of English Common Law. Wills are a new fad that began in the Sixteenth Century.


Q.        What happens if I have a living trust and later want to change some of my instructions?

A.        No problem, Changing a living trust is very simple. If you change your mind, all you have to do is have an amendment drawn up changing that particular instruction and sign it. To change a will, you must have a document called a codicil drawn up, or a whole new will, depending on the type of change. Then you need witnesses; you need to certify that you are ćof sound mind;ä and basically you go through the same formalities as when you signed your will. There is no ceremony in amending a living trust. A living trust follows conventional, everyday business and social mores.

Q.        If I have a living trust, do I need to have my trust changed every time I buy or sell something?

A.        No. If you have a revocable living trust, when you sell something, you just sell it as trustee of your trust. When you buy something, you just title the property in the name of the trust. No changes need to be made in your trust document. Property flows in and out of your trust at your discretion.

Q.        I am single. Should I have a trust?

A.        Yes, for two very sound reasons. The first reason is disability. Single people are concerned with who will take care of them in the event of illness or an accident. With a living trust, a single person can stipulate exactly how this will be done.

        The second reason is legacy. Single or not, most people have very distinct views on who will receive their property at their death. Just because you are single is no reason to go through probate.

Q.        Iām in my second marriage, I have children from a previous marriage, and my spouse has children from a previous marriage. How would a living trust help us?

A.        Imagine if the wife dies and leaves all her money to the husband. He has no legal obligation to use it to provide for his wifeās childrenās welfare. This can easily be circumvented if the wife and husband draw up living trusts that provide specific instructions for the care of each of their children. A living trust allows you to take matters into your own hands.