Common Estate Planning Blunders

When you think of estate planning, do you think of planning your own future, or simply the lives of the rich and famous? Exotic destinations, sports cars, luxury yachts, mansions and the like? Well, the truth is everyone from society’s elite to the elderly widow on Main Street, USA has an estate worth planning, which means everyone, regardless of their wealth can suffer the same mistakes in doing so.

Incapacity. In Montana, you are considered an adult at age 18. Up to that time, an individual younger than 18 is considered a minor and his or her parents or legal guardians make decisions concerning that person’s health, welfare, and financial well-being. On your 18th birthday, you become solely responsible for own personal, health care and financial decisions. To address these needs in time of incapacity, it is necessary that you appoint an agent to make health care decisions for you and manage your financial affairs. The only way to do that is to create a Durable Power of Attorney for Health Care Decisions and a Durable Power of Attorney for Asset Management. Minus these documents, the only way to cure these legal “illnesses” is through court proceedings involving as many as 3 attorneys – a very expensive endeavor indeed.

Minor Children. What happens to your minor children if you were to become incapacitated or pass away? For us parents, the very thought of leaving children in such a vulnerable state is unfathomable, but sadly this story unfolds time and again. Thankfully, under Montana law, you are permitted to name “backup parents,” called Guardians. These persons may be designated in your Last Will and Testament, and would receive preference before the court in so serving. A Guardian is vested with the same duties and responsibilities as a parent, and most importantly, the persons you believe best share your values and moral code to impart upon your children. Absent these designations, it is possible your children could be wards of the State, falling into foster care, or be ordered to spend their remaining youth with persons you least likely would have chosen.

Death & Taxes. The only two certainties in life are death and taxes. – Benjamin Franklin. Our form of government has made sure it will collect its rightful share during your lifetime and even at death. To keep the government at bay, our Supreme Court has ruled that no person should be forced to pay more than his or her share of taxes. A proper well drafted, proper estate plan can ensure you pass on to your loved the ones the maximum amount quickly and efficiently.

One tool used quite often is a Revocable Living Trust. This document can avoid probate, streamline administration, and under specific circumstances, eliminate the payment of federal estate taxes. Living Trusts are just one of a variety of estate planning tools available to you to protect your assets and minimize taxes.

Inheritance Planning. You’ve worked hard to earn your fortune. You saved, invested, and protected your wealth for your own well-being, and those you love. Nothing is more maddening than seeing a lifetime of success squandered by spendthrift children, malcontent spouses, or plain misfortune – divorce, bankruptcy, etc. Long-term Inheritance Planning allows you to devise the terms and conditions upon which your estate will pass to your loved ones. Planning alternatives may include age timing of distributions, education requirements, asset protection planning, and more to best carry out your legacy.

Multi-State Administration. Generally, personal property, such as bank accounts, insurance proceeds, stocks, bonds, etc. are subject to estate administration under the laws of the state where the deceased was a resident. Real property, be it a home, commercial property, or unimproved land, is subject to administration in the state where that land is located. Unless you take legal precautions to address the administration of your personal property and real estate holdings, your estate could be diminished by the expensive costs of probate in multiple jurisdictions.
Retirement Planning. Retirement plans single-handedly hold the largest amount of wealth for American today. Preserving this wealth between spouses and for heirs is risky business. Without careful consideration of your retirement plans, you could lose a majority of that to the government. The question you have to ask yourself is can you afford not to plan?

Business Succession Planning. Even though 70% of America’s businesses are considered small businesses, less than 30% survive following the death of their founder. Family businesses have provided growth, prosperity, and opportunity for families and without succession planning there is no hope that this will continue. Business succession planning can involve the use of insurance products, estate planning tools, and asset protection tools to meet the demands of today’s complex business environment.

Joint Tenancy With Rights of Survivorship. A common misconception is that people believe titling all of their assets jointly with their spouse or children or heirs will best avoid the complications of estate administration. Nothing could be further from the truth. Assets left in joint tenancy will undoubtedly avoid probate administration, but the costs may be too much to bear. Joint tenancy assets are subject to creditor claims of all of the joint tenants, even those who contributed nothing towards the property. Furthermore, such transfers upon death may actually increase the amount of federal estate taxes paid on the property.

Fail to Plan and Plan to Fail. A mere 30% of Americans have actually taken the care and time to create an estate plan. And of those who have, very few have reviewed or updated their existing plans. The result is an unintended cost of administration, frustration among family members, and unrealized expectations. If you have an estate plan, now is the time to review it carefully. If you have no plan in place, now is the time to create one. Call us today for your free consultation to see what we can do for you.

For more information, please contact Estate Planning Attorney Brian C. Tanko at Tanko Law Office 406-257-3711, or visit us on our website at and Facebook

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