Parents who have children with special needs should make sure that their children are adequately cared for after the parents pass away. Special needs children sometimes require financial assistance for the duration of their lifetimes, making planning more challenging than it is for other children. An estate planning attorney can assist you to make sure that your child is cared for.

If your special needs child will need financial assistance and cannot manage his or her own money, your attorney can setup a trust to dispense the funds as they are needed. Often the attorney can also act as the trustee who administers the trust. Thus, the same attorney will continuously make sure that your special needs child has the funds necessary to maintain his or her lifestyle after you pass away. In some cases, you may need to appoint a guardian for your special needs child. Your estate planning attorney can also help you choose an appropriate guardian and ensure that the necessary documents have been prepared.

Speak to your attorney about what will happen to your special needs child after you pass away. Do not leave the care of your children up to state agencies that are often short on funding.  An experienced attorney can give you peace of mind in knowing that your children will be taken care regardless of what happens to you.

The Law Offices of Richard B. Schneider, LLC is a member of the American Academy of Estate Planning Attorneys.

If you create a testamentary trust in your Will, you can name almost any responsible adult to act as the trustee. Many people choose to name a friend or family member as trustee. Sometimes, this is a great idea, but sometimes it does not work out as intended. In Oregon, you can name an attorney as the trustee and there are good reasons to do so.

The trustee is charged with conducting the affairs of the trust faithfully and must act as a fiduciary of the beneficiaries of the trust, which means the trustee must act for the benefit of the trust’s recipients. Attorneys are used to acting as beneficiaries for their clients. In the same way that an attorney carries out the wishes of clients in other areas, the attorney trustee carries out your wishes as stated in the trust agreement. In fact, attorneys are subject to discipline if they do not.

Another benefit to naming an attorney as a trustee is that the attorney will act dispassionately in carrying out his or her duties. Friends and family members might develop personal conflicts that make administering the trust more difficult. An unrelated attorney trustee will not have this problem.

Deciding who to name as the trustee of a trust you create is a personal decision that you should make wisely. You have many options and your attorney is one of them.

The Law Offices of Richard B. Schneider, LLC is a member of the American Academy of Estate Planning Attorneys.

In the last post, we looked at a few of the “don’ts” to consider in naming an executor in your Will. To review, the executor is the person charged with seeing that your wishes as stated in the Will are carried out. Before you see your estate planning attorney to draft a Will, these are a few things you should consider so you can tell your attorney who you want to name as the executor of your will.

• Do choose someone you can trust to carry out your wishes faithfully and quickly. Your executor should not drag her feet handling your will and drag out the process longer than necessary. Choose someone who will try to get things done in a timely manner.
• Do choose someone who your other beneficiaries and family members get along with. Under ideal circumstances, no one will seek to challenge the contents of your will. If they do, however, you want an executor who will not bring unrelated, personal differences to the arguments over the will.

• Do choose someone you have spoken to about being your executor and who has agreed to act in that capacity. You do not want to surprise someone with a responsibility she was not anticipating having after you pass away. If the person you name as the executor does not want the role, then the probate court may have to name someone else whom you would not have chosen.

That wraps up a few of the basic do’s and don’ts in naming an executor. Your attorney can go over other considerations with you.

The Law Offices of Richard B. Schneider, LLC is a member of the American Academy of Estate Planning Attorneys.

One of the first things your estate planning attorney will ask you about what you want in your Will is who you want to name as the executor. This is the person charged with seeing your Will through the probate process, making sure your debts are paid, and distributing your assets according to the terms of your Will. Who you want to name as the executor in your Will is entirely up to you. However, there are a few “don’ts” you should consider.

One of the first things your estate planning attorney will ask you about what you want in your Will is who you want to name as the executor. This is the person charged with seeing your Will through the probate process, making sure your debts are paid, and distributing your assets according to the terms of your Will. Who you want to name as the executor in your Will is entirely up to you. However, there are a few “don’ts” you should consider.

Don’t think you need to name someone as your executor because of his or her relationship to you. You can name a spouse, child or other close family member, but you are not required to do so.

• Don’t name someone financially irresponsible. The executor is charged with handling the finances of your estate. Make sure that you appoint someone who can handle his or her own finances.
• Don’t name someone who lives far away from you and who cannot easily travel to your residential area. The executor may need to travel to handle some aspects of the estate, including appearing in probate court proceedings. Appoint someone with the ability to be in the proper location when needed.

Next time, we will look at a few “do’s” you should consider when naming an executor in your Will.

The Law Offices of Richard B. Schneider, LLC is a member of the American Academy of Estate Planning Attorneys.

An inter-vivos, or living, trust can be either revocable or irrevocable. Both are created, and become effective, during your lifetime. An irrevocable trust offers both asset protection and estate tax advantages that a revocable trust does not; however, a revocable trust allows you the ability make changes to, or terminate, the trust at any time and can be used as an effective incapacity planning tool.

In the event that you become incapacitated without an incapacity plan in place, your loved ones may need to seek court intervention in order to declare you incapacitated and then to decide who will assume control of your assets. By creating a revocable living trust you can eliminate the need for such court intervention.

When you create your revocable living trust, you have the option to appoint yourself as both trustee and beneficiary. This allows you to retain control over the trust assets while you are alive and able to manage the trust. You will also nominate a successor trustee. That is the person who will take over control in the event of your incapacity.

Along with establishing the basic terms of the trust, you have the ability to define your own incapacity in a revocable living trust. You may require a panel of physicians and family members to declare you incapacitated or require a specific number of doctors to agree on your incapacity. The important point to understand is that you will decide how to define your own incapacity. Once you have been declared incapacitated according to your own definition of the word, your successor trustee will immediately take over control of the trust and have access to the trust funds in order to care for you and/or your loved ones, also according to the terms of the trust.

The Law Offices of Richard B. Schneider, LLC is a member of the American Academy of Estate Planning Attorneys.

One of the most popular estate asset tools is a trust. Trusts come in many forms and can be constructed to accomplish specific goals in many cases. A basic trust consists of a grantor, a trustee, at least one beneficiary and assets that are used to fund the trust. Beyond the basics, trusts then fall into one of two broad categories — irrevocable and revocable. Although there are numerous other decisions that must be made when you create a trust, deciding whether your trust will be revocable or irrevocable is generally the starting point.

A revocable trust is often used to avoid probate. Probate is the legal process that is often required when someone dies. Probate inventories and values assets, pays debts and finally distributes estate assets. Avoiding probate allows your trust beneficiaries access to the trust assets without having to wait for the probate process to terminate. Most importantly for some, a revocable trust lets you make changes to, or even terminate, the trust at any time.

Probate can also be avoided by creating an irrevocable trust. In addition, an irrevocable trust allows you to avoid estate taxes and protect assets from creditors. You may also get capital gains and personal income tax benefits with an irrevocable trust that you don’t get with a revocable trust. What you give up with an irrevocable trust is the ability to make changes or terminate the trust. Once you create an irrevocable trust, for all intents and purposes you are locked in to the terms of the trust.

The Law Offices of Richard B. Schneider, LLC is a member of the American Academy of Estate Planning Attorneys.

When you create a trust, there are numerous decisions that you must make. One of the most important decisions is who you nominate as the trustee. Each trust is unique and each person who creates a trust will choose a trustee for different reasons; however, there are a few common factors that you should take into consideration before you choose your trustee.

• Location of Trust Assets: This is a practical consideration that may people fail to consider. If your trust contains tangible assets, such as real property, the location of the trust assets is important because the trustee is responsible for overseeing the assets. Your trustee needs to be located near the assets in order to perform this responsibility well.
• The Purpose and Complexity of The Trust: A simple trust, such as a pet trust that has as its sole purpose funding the care of a pet after your death may be relatively simple to administer. A complex trust, such as a charitable trust, on the other hand, can be extremely complicated to administer, requiring a more experienced trustee.
• Relationship of the Trustee to the Beneficiaries: Appointing a family member may offer the benefit of knowing the trustee well, and provide you with a certain degree of trust in your trustee; however, consider the relationship of the intended trustee to the beneficiaries of the trust. Ask yourself whether you could foresee a conflict of interest as a result of that relationship, or whether the trustee has a financial interest in the trust assets as a result of the relationship. Often, appointing a family member actually comes with more potential risk than gain.
• Financial Ability and Experience: Whether your trust assets are minimal or extensive, the purpose of the trust is to guard and grow those assets. Be sure to choose a trustee who has the financial ability and experience to accomplish both of those objectives.

The Law Offices of Richard B. Schneider, LLC is a member of the American Academy of Estate Planning Attorneys.

Most people know that creating a Last Will and Testament is the foundation of any estate plan and, therefore, make a point of executing a Will. Updating your Will, however, after a major life change can be as important as executing the Will in the first place. Although each person’s situation is different, and there are certainly other reasons that may also warrant an update, there are three major life changes that should prompt anyone to update a Will and any additional supporting estate planning documents.

A divorce is always a good reason to update your Will. The majority of people create reciprocal Wills, meaning that if one spouse dies, all assets go to the other spouse and vice versa. If you get a divorce, and subsequently die without having updated your Will, your current wishes for the distributions of your estate may not be followed.

Marriage, likewise, calls for a Will update for the opposite reason. Although some states allow a spouse to “take against a Will” whether or not the Will actually names the spouse as a beneficiary, state law in the state where you are a resident at the time of death may not provide this option. Even if it does, it may not give your spouse as much of your estate as you intended him or her to have.

The birth of a child or grandchild is also a good time to update your Will. Many people rely on the generic term “issue” to refer to children or grandchildren in a Will; however, this can present a problem if a child or grandchild was born out of wedlock or there is some other question as to paternity. By naming the children or grandchildren in the Will, you avoid any potential problems.

The Law Offices of Richard B. Schneider, LLC is a member of the American Academy of Estate Planning Attorneys.

When you sit down with your estate planning attorney to plan your estate, a rudimentary understanding of common wills and trust terminology may make you feel more comfortable. For example, the terms “beneficiary” and “heir” are often used interchangeably; however, in most states they have very different meanings.

State laws determine rules, procedures, and terminology with regard to estate matters; however, there are some fairly universal concepts and terms. An heir is typically someone who will stand to inherit from your estate under the laws of intestate succession. Intestate succession, in turn, simply refers to an estate wherein the decedent died without leaving a valid Last Will and Testament. As a general rule, heirs under intestate succession laws include a spouse and other blood relatives. Your spouse and children will likely be the first heirs in line to inherit, followed by grandchildren, parents, siblings, and on down the line until your entire estate has been accounted for under your state’s intestate succession laws.

A beneficiary, on the other hand, is someone that you specifically mention as receiving a gift under the terms of your will. For example, if you bequeath your father’s ring to your daughter in your will, she is then a beneficiary under the terms of your will. Likewise, if you bequeath your vehicle to your best friend Sally under the terms of your will, Sally is a beneficiary. A person can be both an heir and a beneficiary. In the above examples, your daughter is both an heir and a beneficiary; however, Sally is only a beneficiary.

The Law Offices of Richard B. Schneider, LLC is a member of the American Academy of Estate Planning Attorneys.

Understanding the concept of intestate succession can certainly be important if you are planning your own estate; however, you may also find it helpful in the event that a relative dies without leaving a will behind. Wills, trusts and estates fall under the jurisdiction of state laws.  Each state determines what laws, rules, and procedures apply to wills, trusts, and estates. Intestate succession, however, is a fairly universal concept that applies, in some form, to all the states.

When a person dies, and does not leave behind a valid Last Will and Testament, the person is said to have died “intestate.” When that happens, the state intestate succession laws govern how the assets that make up the decedent’s estate will be handled and who will receive them. Another scenario under which the laws of intestate succession apply is when a will was executed, but the will failed to account for all the estate assets. For example, if the decedent left a will with a number of specific bequests, yet did not indicate who would receive any cash or assets that are not specifically mentioned in the will.

State law determines who inherits when a decedent dies intestate and how the estate assets are apportioned among the heirs. In most states, the spouse and children are first in line to inherit, followed by lineal descendants such as grandchildren and/or parents, siblings, and other blood relatives.

Before assets in an intestate estate can be transferred to heirs, a court must determine who the heirs are to the estate.

The Law Offices of Richard B. Schneider, LLC is a member of the American Academy of Estate Planning Attorneys.