We Answer Some Frequently Asked Questions About Estate Planning
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Is a Trust publicly filed?
No. A Trust is not publicly filed. It is a private legal document.
If a Trust is private, how would others know it exists if I pass away?
Typically, your assets, such as a home, bank account, life insurance policy, or retirement account, are somehow connected to the trust, either through the way these assets are owned, or through death beneficiary designations. This alerts family to the existence of the trust. We recommend that if you have a Trust, you tell your Trustee where you keep the Trust and how to contact your attorney in an emergency.
My loved one died but they had a trust. What do I do now?
If your loved one had a revocable living trust in place when they passed away, you will need to begin the trust administration process. You should contact us right away as there are time sensitive deadlines for administrating the trust. Even if the surviving spouse is still alive and it was a joint trust, you will still need to talk to an attorney to determine what is required to be done per the terms of the trust.
What is the difference between a revocable living trust and an irrevocable trust?
An irrevocable trust differs from a revocable trust because the assets you hold in it are no longer considered part of your taxable estate. It can provide protection from creditors, predators, lawsuits and divorces during your lifetime. Most people who set up an irrevocable trust do so in addition to setting up a revocable trust. It’s important to be strategic about which assets are placed in an irrevocable trust because the owner loses some flexibility and control over those assets during his or her lifetime.
What is the difference between a Will and Trust?
Both a Will and a Trust are legal documents that identify who you would like to inherit from you if you pass away. However, a Will is still subject to a long and expensive court process known as Probate when you pass away, while a Trust avoids the need for Probate and allows you to pass your assets privately, and efficiently, without the hassle of court.
My loved one died without having any legal documents in place. What should we do?
If a Will or Trust cannot be located, you should contact us as soon as possible. Many families find that when there are no legal documents in place, they may have to go through a court process known as Probate to determine who is responsible for making decisions now that the loved one is gone, and where the assets must go according to the law.
How would my family know who I want as a guardian?
It’s important to make sure that your Will could easily be found if you were to pass away. We recommend that you let your family know where you keep your important estate planning documents and how to get in touch with your attorney in case of emergency.
What is a Kids Emergency Plan?
The Kids Emergency Plan covers your children’s complete care during an emergency. It includes legal documents governing who would raise your kids if you were to pass away, who can care for them temporarily during an emergency, who is authorized to make medical decisions for them if you cannot, instructions on how you wish your kids to be raised, children’s health care history, and an alert plan that would work the moment something should happen to you. If you have minor children, naming a permanent guardian is not enough! You need to have an estate plan coupled with a Kids Emergency Plan.
Do I need to get a guardian’s permission before I nominate them to raise my children if I pass away?
No. The guardian you nominate will have to decide at the time you pass away if they accept your nomination to assume this important role. For this reason, we recommend that parents nominate at least three individuals or couples who can potentially raise their kids, in the order of preference, just in case someone declines or predeceases you. Because parents often change their choice of guardian over the years, we recommend that parents inform a potential guardian that they are one of the persons considered, but not reveal the exact order if there is concern over hurting anyone’s feelings.
Does the guardian I choose have to live in the United States?
No. Parents can designate any responsible adult to raise their children if they pass away, even if they do not live in the United States. Ultimately, a judge must approve any parent’s nomination of guardian. For parents nominating guardians who live out of the area, or even out of the country, it’s important to also designate local temporary guardians who can care for the children in the interim until the permanent guardians can arrive and assume their role.