FREQUENTLY ASKED QUESTIONS

1. What is an estate plan?

An estate plan is a formal set of instructions that lets people know what you would like to happen to your estate (personal property, investments, etc) in the event of your death or inability to make decisions (ie you are mentally incompetent, or in a coma). An estate plan can be simple or very detailed and can include what and how and by whom your estate can be distributed and used. However, your plan must be properly drafted and executed to comply with the law or it will not be legally binding and therefore will not accomplish want you intended.

Having a plan will help avoid confusion and uncertainty in the event of your death or incapacitation by letting everyone know what you would like to have done with your property, investments and even yourself. Like many events in life, unexpected death or incapacity can make deciding what happens to you and your estate very complicated.

People who care about their loved ones set up an estate plan to reduce the financial and emotional burden on their relatives and friends by directing what their final wishes are. By doing this, you can help them avoid legal costs and the difficult emotional process of making decisions concerning personal, intimate or valuable parts of your estate.

The primary purpose of a will is to give directions on how your property will be distributed upon your death.  Property distributed by a will requires a Probate and is distributed directly to the beneficiaries at the end of the probate. At that point, the property belongs to the beneficiary and is subject to any debts or obligations the beneficiary may have. Wills can also contain instructions regarding the care of minor children, gifts to charity, and foundations.  In order for a will to be legally valid, you must sign the will in the presence of two witnesses, you must be mentally competent, and not acting under duress or under the controlling influence of another.

Trusts are legal entities that can replace or supplement wills, as well as help manage property during your life. Most people set up trusts in order to try to avoid probate. Unfortunately, most trusts fail to do this because they are not properly funded. However, it is also possible to accomplish many things with a trust that you cannot with a simple will. A trust can contain instructions regarding your wishes in the event of your disability and manage that privately rather than through court. A trust can manage the distribution of property for your beneficiaries and can minimize taxes and therefore, leave a larger inheritance to your family and loved ones. A trust can also be used to protect assets that you want your beneficiary to enjoy rather than those who may have claims against your beneficiaries. A trust also can reduce the beneficiary's tax and allow the assets to grow over time. They can also be established for the benefit of charitable organizations.

Probate is the legal process of transferring property following a person's death. If a person dies “Testate” (with a Will), or “Intestate” (without a Will), a probate is required to be opened and monitored by the appropriate local court. Once a probate is opened, it also becomes a matter of public information. Although probate customs and laws have changed over time, the purpose has remained much the same: to make sure that your intentions regarding the transfer of your property at the time of your death are followed. Your property is collected, inventoried and appraised, certain debts are paid from the estate and the property is distributed according to your will after debts and taxes are paid. However, most probates can be costly, time-consuming, and complicated.

Most trusts are not properly funded. This means that after they are set up, the client’s assets are not transferred into the trust, therefore the trust does not control the asset and the client’s family ends up going through Probate, the very thing that everyone was trying to avoid. This means that all the money that was spent on setting up the trust was wasted. An estate plan does not have to be expensive and will help avoid adding many uneccesary costs and complications later.

You can. Unfortunately, your loved ones will pay the price because most form documents that you can find on the internet and elsewhere were designed for someone else’s situation, not yours. In fact, many documents you will find on the internet do not comply with the laws of many states. Read the fine print and disclaimers. Taking legal advice and properly setting up your estate plan will avoid many unnecessary costs and complications down the road.

Our firm offers some unique services that many companies do not. We know that every situation is different and that there is no "one size fits all" estate planning solution. So we take the time to meet with all of my clients and discuss their personal and family situation before we create a single document for them. We know how to provide many benefits and protections for my clients and their loved ones that most attorneys simply do not bother to provide.

We also take on the responsibility of transferring your assets into your trust after it is formed so that it will actually accomplish all the things that you want it to. Finally, we provide an annual update and maintenance program to ensure that your plan stays up to date and current with any changes that occur in your life and in the law. This means that the money you spend on setting up your plan with William S. Graves PC will not be wasted and will be money well spent.