Estate planning
|
probate, administration of ESTATES & TRUSTS; CONTESTED MATTERSIn addition to planning for the appropriate disposition of property, we also regularly provide counsel with respect to probate and the administration of estates and trusts. With respect to decedents’ estates, our usual role is to advise and support personal representatives (also commonly known as “executors”) in estate settlement. Carrying out the dispositive plan set forth in a will or trust instrument typically involves navigating the probate process and attending to various Maine and federal tax filings, while addressing other legal issues that may arise. We offer comprehensive representation across all fronts. We also represent trustees and beneficiaries during the lifespan of various kinds of trusts, providing ongoing tax and accounting support and advising clients with respect to fiduciary responsibilities and the rights of beneficiaries. We do serve as trustees and personal representatives ourselves when appropriate. In these roles we are happy to work alongside family members or corporate fiduciaries or serve independently. Sometimes our work calls upon us to represent parties in contested matters in Maine’s probate and superior courts. These cases might include trust reformation proceedings, contested guardianship and conservatorship matters, and will contests, among others. In these areas, we provide intelligent and vigorous representation with the aim of resolving these matters sensibly and expeditiously. In all of these matters, we are committed to providing service that is responsive and cost-effective. |
WILLA Will allows a person (the "testator") to direct how some of the testator's assets will be distributed after his or her death and to nominate a personal representative (sometimes known as an executor) to navigate the probate process and make sure that the assets of the estate are properly distributed. In addition, if the testator has children under the age of 18 who become orphaned, a Will typically names a guardian who will take care of them and their assets until they turn 18. A Will may also include one or more trusts, which provide a way to regulate a beneficiary's use of inheritance by placing control of the inheritance in the hands of a trustee. Trusts may be particularly useful for young beneficiaries, those who lack capacity or sound judgment, and in second marriage situations where it is a priority to direct any remaining assets to the children of the testator after a second spouse's death. Trusts can also be an effective means of reducing or eliminating estate taxes, especially for married persons. A Will rarely governs all of a person's assets. Assets transferred to a Revocable Trust during the lifetime of the client (see below) are governed by the client's Revocable Trust, not his or her Will. Assets owned in joint tenancy pass automatically to the surviving joint tenant upon the death of the other and not under the Will of the deceased joint tenant. Certain assets, such as life insurance and retirement plans, pass by beneficiary designation (see below). |
REVOCABLE TRUSTA Revocable Trust (sometimes called a Living Trust or an Inter-Vivos Trust) is thought of as an alternative to a Will, and its primary appeal is that it offers a way to avoid the probate process upon one's death. Whereas a Will must be probated through the county probate court to be given effect, a Revocable Trust does not. A Revocable Trust is a separate document established by a person (the "settlor") that typically names the settler as the manager of the Revocable Trust (the "trustee"). To succeed in avoiding the probate process, the settlor must transfer into the Revocable Trust, during the settler's life, assets that would otherwise require probate. The terms of the Revocable Trust usually provide exclusively for the settler during the settler's lifetime. Thereafter, the document serves in much the same way as a Will, directing how the settler's assets, such as real estate, valuable possessions, bank accounts, and investments, will be handled after the settler's death. A revocable trust can be changed or revoked at any time but becomes irrevocable upon the settler's death. |
IRREVOCABLE TRUSTAn Irrevocable Trust is usually a way for a settlor to make a lifetime gift in favor of one or more beneficiaries, but to do so in a way that regulates the use of the gifted assets. Sometimes an Irrevocable Trust is funded with the family vacation home in the hope that the terms of the trust encourage retention of the property within the family. Sometimes the funding is with cash or financial assets, the purpose of which is to help cover the cost of a child's or grandchild's college education. Irrevocable Trusts tend to be appealing for settlers who wish to give up ownership and control over assets to benefit others. Funding an Irrevocable Trust may use all or a portion of the settler's lifetime gift exemption and thus require the filing of a U.S. Gift Tax Return. |
BENEFICIARY DESIGNATIONSCertain assets, such as life insurance, IRAs, and other retirement accounts, are typically not governed by one's Will but instead by contract. That contract is usually referred to as a beneficiary designation form that is provided by the life insurance company or the retirement plan sponsor or IRA custodian. The proper completion of these beneficiary designation forms is essential, given the amount of money that is often at stake. It is also important to review and update these arrangements regularly. |
DURABLE POWER OF ATTORNEYA Durable Power of Attorney provides an opportunity for a person (the "principal") to authorize a trusted family member or another person (the "agent") to act for the principal in a wide range of legal and business matters, including buying and selling property, managing finances, filing tax returns, making gifts, etc. The granted authority may take effect upon delivery of a signed and notarized document to the agent, or it may also require a showing of incapacity on the part of the principal. In the vast majority of cases, a Durable Power of Attorney makes it unnecessary for a court to appoint someone to manage the financial life of an incapacitated person. A Durable Power of Attorney is only effective during the lifetime of the principal unless sooner revoked by the principal or invalidated by a court or by operation of law. |
ADVANCE HEALTH CARE DIRECTIVEAn Advance Health Care Directive allows the appointment of an agent who would be empowered to make medical decisions for the principal if the principal were unable to participate in his or her own medical decisions. The document also gives the principal the option of directing that heroic medical treatment either be administered or withheld if the principal is terminally ill or in a persistent vegetative state. In addition, the document offers an opportunity to be a willing organ donor and to nominate a guardian, should one ever be necessary. |
