Probate and Estate Planning

Estate Planning

Everyone should have a durable power of attorney for health care (Living Will) and a durable power of attorney for financial matters should they become incapacitated. Read below and feel free to contact us for assistance.

At Christenson & Fiederlein, PC, our attorneys are committed to providing quality advice in all aspects of its representation for our clients.

We will review your estate planning needs and draft an estate plan that satisfies your long-term goals with your costs in mind. We highly recommend that all persons have a durable power of attorney for health care (i.e. Living Will) and a durable power of attorney for financial matters should they become incapacitated.

Depending on your assets and long term goals, we may prepare a simple Will, a joint trust or separate trusts. A Will is a legal instrument which a person signs indicating how his or her estate is to be distributed upon death. It also designates the individual(s) who is to be put in charge of handling the estate. A Will does not avoid probate court but is a way of distributing your probate assets at death to the beneficiaries that you name in your Will and by the person you appoint to handle your estate (i.e. your Personal Representative or executor). Having a Will avoids the state statutory scheme call intestacy (dying without a will). For example a husband and wife dies with children, husband is entitled to the first $160,000.00 (may also include household and other exempt assets) and the rest of the estate would be split between the husband and the children. I am sure this was not your intention. Therefore, a Will or other estate plan is necessary.

It is important that you understand that nature of joint accounts, deeds with rights of survivorship, beneficiary forms, payable upon death accounts, IRA/401 K designations to avoid potential pitfalls. Did you know that if you deed your property joint with right of survivorship to your child and your relationship goes sour that you may not be able to remove him from the title. That a child you placed on your joint account does not have to share it with the other siblings after your death.

Although this is a lot of information, it is imperative that you discuss an estate plan with your lawyer. It is affordable and avoids potential family divorces when you die, as your failure to act may have a negative effect on future family harmony if you do not understand the nature of your estate plan (or distribution of your estate at death).

Wills

At Christenson & Fiederlein, PC as a piece of your estate planning, we will discuss the necessity of a Will in the estate planning process.

Depending on your assets and long term goals, we may prepare a simple Will, a joint trust or separate trusts. A Will is a legal instrument which a person signs indicating how his or her estate is to be distributed upon death. It also designates the individual(s) who is/are to be put in charge of handling the estate. A Will does not avoid probate court or probate court fees, but is a way of distributing your probate assets at death to the beneficiaries that you name in your Will and by the person you appoint to handle your estate (i.e. your Personal Representative or executor). Having a Will avoids the state statutory scheme call intestacy (dying without a will). For example a husband and wife dies with children, husband is entitled to the first $160,000.00 (may also include household and other exempt assets) and the rest of the estate would be split between the husband and the children. Most of the time, this is not what a husband and wife expect upon death. Therefore, a Will or other estate plan is necessary.

Please feel free to call Christenson & Fiederlein, PC for a free consultation and download our Estate Planning Questionnaire (PDF) so that your consultation is more effective.

Trusts

At Christenson & Fiederlein, PC, our attorneys can help you with your estate planning needs that may include the use of a Living Trust (also known as the revocable trust or revocable living trust).

A Trust has several advantages as follows:

  1. Usually Keeps the Court Out of Your Personal Affairs. Unlike a will, which is a death instrument only, the Living Trust also protects you while you're alive. It allows you to appoint someone of your choosing to handle your business affairs in the event you become incapacitated. This minimizes the chances of guardianship and court involvement in your personal affairs.
  2. Maintains Privacy and Discourages Challenges. A Living Trust is a private document and is not required to be filed with the Probate Court to administer at the time of death. Therefore your Trust and Estate does not become a public record and the possibility of heirs/beneficiaries challenging your trust by upset family members is reduced greatly as it is more difficult to challenge the Trust.
  3. Probate Avoidance. One of the most popular reasons for preparing a Trust is that if the Trust is properly funded, your estate avoids Probate Court and expenses at death. Costs for the handling of a Probate Estate can be in excess of several thousand of dollars of needless expense.
  4. Estate Tax Advantages. For Couples with taxable estates, the Trust may offer several additional advantages. A Credit Shelter Trust (or bypass trust) allows couples to pass more tax free money to beneficiaries by taking full advantage of each spouse's estate tax exclusion. When the first spouse dies, his or her assets equal to the amount exempt from estate taxes -- currently $3.5 million -- flow into a Credit Shelter Trust. The survivor has access to the income from that trust, but not the principal. When the survivor dies, the money from the Credit Shelter is not included in the survivor's estate, thereby allowing twice as much money to be passed tax-free to heirs.
  5. Family Planning. In establishing a Trust the lawyer may be more creative in establishing plans for the Settlor of the Trust (You) in deciding when your children should receive distributions from the Trust. For example, a typical Family Trust will allow the children to receive the corpus (or principal) of the Trust 1/3 at 25 years of age, 1/3 at 30 years of age, and the final distribution at age 35. This provides protection of your child from creditors and credit card mistakes made in college or early in their life. It allows the Trust to grow while your child is learning to be a financially responsible adult and may provide the flexibility for the Trustee to allow funding to your child to start a new business, buy a first house, etc.

MOST TRUSTS ARE REVOCABLE. When you establish a Revocable Trust as part of your estate planning, you (the grantor, also known as the Settlor/Grantor) make yourself the trustee of the assets you place in the trust. You are still free to sell, trade and give away the assets as you see fit. You may also change the terms of the trust, or revoke it, at any time. But once you pass on or become incapacitated, the successor trustee(s) you've designated will take control of your assets, and distribute them in accordance with the provisions of your trust.

Trust Administration

At Christenson & Fiederlein, PC, we have experience in handling all aspects of trust administration. We believe in the use of experts, such as CPAs, to assist in handling the accounting and tax filings to save our clients’ costs. We assist the successor trustee named in the Trust in settling the affairs of the decedent. A trust is generally easier to administer without going through probate than a Will. However, when the person who establishes a trust dies, the job of the successor trustee can become complicated.

Transference to the successor trustee does not happen automatically, and our trust administration lawyer helps clients handle the transference and other duties, including:

  • Notice to Beneficiaries
  • Acceptance of Trust
  • Accounting
  • Inventory and Appraisal
  • Income and Estate Taxes

It is important to seek legal advice in properly handling Trust Administration.

Probate Administration (Decedent's Estates)

At Christenson & Fiederlein, PC, our firm has experience in filing and handling all aspects of probate administration. A Probate of person's estate is necessary when a person dies if they own assets at the time of death which are not owned jointly with another, are not directed by beneficiary designation, or are not held in a trust. The process begins by the filing of a Petition in probate court for the appointment of a personal representative. This is an interested person in the estate (heir at law, devisee of a will, or named personal representative/executor).

We will assist you in filing the appropriate probate court forms with the Court, obtaining an EIN number for the estate, filing final state and federal tax returns, notifying creditors via publication and direct mail, filing an inventory, managing the accounting of the estate and its liquidation of its assets, and eventual distribution to heirs with the goal of protecting your potential liability.

At Christenson & Fiederlein, PC, we have represented numerous clients in contesting Wills and Trusts based on theories of undue influence, incapacity and other legal theories. We can represent heirs/devisees to ensure that the personal representative is complying with his/her fiduciary duties to serve in the best interest of the estate and its heirs.

Guardianships and Conservatorships

At Christenson & Fiederlein, PC, we have experience in handling all aspects of guardianship and conservatorship proceedings. A Conservatorship may be necessary if an individual, because of some physical or mental illness or disability, is unable to manage their legal or financial affairs. A conservator would be appointed to act as their fiduciary in handling their legal and financial affairs. A guardianship may be necessary when the individual because of some physical or mental illness or disability is unable to make informed decisions concerning their health care.

If the person had executed a durable power of attorney and/or a living will a conservatorship and/or guardianship may be avoided as the persons designated in those instruments could handle their affairs without having to go to Court.

After appointment by the Court, we will assist you in handling the legal and financial affairs of the conservatorship, including filing an inventory of the person's assets, an annual account to the court on the financial affairs of the incapacitated person, and most importantly obtaining approvals for necessary funds and expenditures that are not in the normal course.

With respect to minors, since a person under the age of 18 are not permitted to own titled property or enter into legal contracts, we will assist you in setting up a conservatorship for a minor who inherits or receives property from another when the law requires that such funds be held in a conservatorship.

Court Filing Costs are $150.00 for Guardianship and $150.00 for a Conservatorship, plus attorney’s fees.

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