Estate Planning

Probate, Wills, Trusts and Estate Plans What Does It All Mean

Most of these terms everyone has heard and has a general idea of what they represent.  Similar to the phrase, “Lions, Tigers and Bears, Oh My!”. Unlike the phrase from the Wizard of Oz, these terms do not need to be scary or overwhelming, they are merely unknown and the assistance of a competent attorney is critical as you navigate this unexpected world.

Many years ago as a young attorney I handled my first probate dispute.  I represented the daughter who had lived with and taken care of the mother. The mother left the daughter the house through a quit claim deed. The brothers who had not helped care for the mother the last ten years of her life filed a probate action when she died. Claiming they were entitled to the home.  After two years of litigation we were finally ready for trial and the judge said,  “You really should try and settle, probate cases are more contentious the my worst divorce cases.” In my naivet I remembering thinking “How can he say that? Everyone knows divorce cases are the worst type of cases.”  Some twenty years later, I have realized the profound wisdom and truth to his statements. Yes divorce cases can and are contentious, but a divorce case you only have 1-30 years of interaction with your spouse.  In a probate case you can have 50, 60 or even 70 years of dispute. People always remember things differently and it is tied up in nebulous issues like who did the parent love the most.  Adult children then put a narrative on the estate division based on whether or not Mom loved them the most because she didn’t go to every soccer game, or the parent was not biological and this is a blended family. When it is a blended family, this stories can take on biblical levels of jealousy, deceit and unhappiness.  All of this can be avoided with a good estate plan and decisions made in preparation and not in response. Sometimes probate litigation is the only mechanism possible because siblings are unreasonable, but a lot of times there are alternatives and all of it could have been avoided with proper estate planning documents. The following is a list of the major terms and services that we offer. We are happy to set up a consultation and tailor a solution to your specific needs and issues.

Will:  This is a document with two witnesses that can be hand written that identifies where and how you want your assets to be divided upon your death.

Trust: This is like starting a new company. It cannot die so when you put your assets into it, it preserves them and can live on indefinitely. I generally describe a trust as a bath tub.  You are then in control of the spigot and the drain plug. The other reason a bath tub is applicable is because very few people use your bath tub without your permission.  A trust operates the same way on this level it is still your assets and the government does not take control or exercise any control over it. When you have a will and a trust, a will is like a pitcher of water that then pours anything left into the bath tub.

Quit Claim Deed: This is a document that transfers ownership to another person.  This could be the transferring of the real property into the trust or transferring it to a beneficiary.

Probate: This is where you go to court for assistance.  It could be because the person died without a will or without any heirs.  It could also be that the heirs disagree about who should have what assets.  In many cases the children attempt to argue actions such as gifts given 20 years in the past that now should effect the distribution of the estate.  Unless it is written in the estate documents gifts do not matter.

Power of Attorney: This is used to make decisions for someone either long term or short term and is signed while the person is of sound mind. It authorizes someone else to act on their behalf while they are still living.

Guardianship: This is for when someone is unable to make their own decisions or care for themselves. Usually a family member will request to be appointed as a guardian for their parents. The court sets a hearing and appoints an attorney for the incapacitated person.

Living Will/Medical Directive: This document outlines at what point a person wants to not be kept on life support or receive assistance. The assistance could be liquids, diabetes medicine, kidney dialysis or maybe just pain management.

TPP: Tangible Personal Property: This document gives the grantor the ability to give gifts of all of the personal property. Things you can touch, wedding rings, guns, Llardo, plants anything of value. It can be changed frequently with only a signature by the grantor, but you cannot give money items, or real property.