FREQUENTLY ASKED
QUESTIONS
Here
are some questions that I get asked about helping clients in
their estate and life planning legal issues. I hope these help you!
Frequently
Asked Estate Planning Questions
1.
What is Estate Planning? "I just need a Simple
Will!"
Estate Planning is
a lifelong process. It is not simply the drafting of a Will,
Trust or any series of documents. The purpose of estate
planning is to assist in the accumulation, management,
conservation, and disposition of your assets. Therefore, Estate
Planning may also be better
called Asset Planning.
The goal
of the estate planning process is providing you and
your loved ones with the maximum benefit during your
lifetime and after your death. Issues typically addressed include:
- saving or
reducing taxes,
- avoiding probate
or reducing its cost,
- providing for
incapacity,
- protecting your
assets from creditors,
- assuring that
your assets are given to whom you desire,
- empowering your
loved ones to control your assets.
If
you own a business, business planning and estate planning must
be coordinated!
Download our Estate
Planning
Questionnaire
2.
What is a will?
A will is a written
document, following the formalities of law, that disposes of your
estate at your death. Some of the advantages of a will are:
- you direct the
distribution of your property at your death, rather than
the state of your residence directing the
distribution through probate and the courts,
- by naming your
executor or executrix, your loved ones, partners, and spouses
can be given the control of your estate rather than others (such as
undesired family members) by the laws of the state of death,
- you
can set up a trust instrument to provide income and
principal for the benefit of your family or others after your death,
- eliminating some
of the fighting over your estate that can involve courts and
unnecessary legal fees.
- you can name the
guardian of your minor children.
.
3.
What happens if I do not have a will when I die?
If you die without
a will, the laws of the state of your last domicile determine
who gets your estate through the laws of intestacy. Typically, the
estate would be given to children and a spouse, but not necessarily to
whom you want. Further, you will not be able to control the
disposition by use of a testamentary
trust.
4.
What is a Testamentary Trust?
A Testamentary
(versus "living") trust can be part of your will.
Unlike a Living Trust
which takes effect upon execution, a Testamentary Trust only
becomes effective at your death. Such
trusts frequently are designed to extend the time for
controlling assets given to minor children or grandchildren
beyond the age of majority (18 in most states.) They can also be used
to protect the disabled and elderly. Sometimes, Testamentary
Trusts can be used as part of a tax savings plan.
5.
What is a Living Trust?
A Living
Trust, legal known as an intervivos
trust is effective
during your lifetime. Typically, your trustee manages
your assets for your benefit during your lifetime, as well as direct
the distribution of assets upon your
death. Testamentary Trusts are frequently used to
provide continuing management of your assets in case you
become incapacitated. There may also be substantial tax savings.
6.
What is a Durable Power of
Attorney?
A Power
of Attorney gives legal
authority to a person to act as your agent, or attorney-in-fact during
your life and while you are competent. A Durable
Power of Attorney continues
after you become incapacitated. Typically, your
attorney-in-fact have authority over bank accounts,
investments, and may have the right to sell your property. Because the
Durable Power of Attorney is
not affected by your incapacity, this may avoid the
need for a court appointed guardian. Without a Durable
Power of Attorney, your
spouse, partner, closest relatives, or companion will have
to undergo the expensive and time-consuming task of
petitioning a court for a guardianship over your
financial affairs if you become incapacitated.
7.
What is Guardianship?
A Guardianship is
where a person is appointed by a court to take control of the
assets of an incapacitated person Usually, a well-designed
Estate Plan, with a Will, Durable Power of Attorney and Living Trust
avoids the need for a court-appointed guardian..
8. What
is a Living Will and Medical Decision Power of Attorney?
A Living Will, also
called a Healthcare Directive, states your wishes about
withholding or providing extended medical treatment when you are unable
to communicate your wishes. A Medical Decision Power of Attorney
appoints an individual to make your healthcare decisions should you
become incapacitated. The Living Will can express
your desires, whether to instruct healthcare providers to withhold
life-prolonging treatments or even to reinforce the
desire to receive all medical treatment that is available.
___________________________________
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Question:
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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Estate and
If someone passes
away and had no will, what happens to his or her estate and the
children?
===========
Reply:
===========
Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Re: Estate and children
If the decedent has
no living spouse, then the assets would be divided equally among the
children under the laws of intestacy. There are many twists and turns
and you will need to see a tax and estate lawyer.
It is a shame the
decedent did not make an investment in a Will and Estate plan. It would
have saved a lot of time and money.
I hope this
helps!
Ron Cappuccio
_________________________________
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Question:
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Category: Tax and Taxation Law
Location: GA
Subject: Gift money and money transfer from overseas
My mom wants to sell her property from overseas for our new house in
the US for our new baby, may be around $250,000. She lives in Hong Kong
and is not a US citizen. If we are going to declare the money to
transfer to the US, what are the normal tax bracket we are looking at?
(percentage wise) Are there any other ways to lower the taxation on the
transfer by investment or any other forms?
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Reply:
===========
Category: Tax and Taxation Law
Location: GA
Subject: Re: Gift money and money transfer from overseas
You should consult an estate and tax attorney. If structured correctly,
you may be able to not have gift tax. I hope this helps! Ron Cappuccio
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