The Sacramento Bee has an excellent article today about how the recession is effecting estate planning and how putting off estate planning can have unintended consequences.
http://www.sacbee.com/2010/04/11/2668226/personal-finance-estate-planning.html
One of the major issues that can arise is when siblings fight over usually inexpensive but emotionally valuable items. This can easily be prevented through a will. In Minnesota, a personal property list can be created that explicitly states who gets what item. There are some requirements for a valid personal property list and some limits on what it can cover.
If you want to prevent a deterioration of family relationships after you've gone, speak with a licensed attorney in your state
Thursday, April 15, 2010
Monday, March 29, 2010
What is an international will?
Just like different US states have different rules about what it takes to make a writing a valid will, different countries have different rules regarding what it takes to make a writing a will. For individuals who reside in a country other than their country of citizenship or own property in another country, these differences can create major headaches when it comes time to probate a will.
In order to prevent just those type of headaches, the 1973 Convention providing a Uniform Law on the Form of an International Will provides for unified requirements to cause a writing to be valid in any signatory country. Following these requirements allows for a one-document fits all affected jurisdictions approach to drafting a will, assuming all the jurisdictions are signatory countries. The convention is a great help for those living in an increasingly globalized society and can be found at http://www.unidroit.org/english/conventions/1973wills/1973wills-e.htm
However, because probate law is ruled by the states and not the federal government, the benefits of this treaty only clearly apply to residents of those states which have adopted the provisions of the treaty into their probate code. Luckily for Minnesota residents, Minnesota has adopted the provisions in Minnesota Statutes 524.2-1001 et al.
Some of the major additions to a normal will that are requirement for international wills, is for each page to be numbered, for each page to be signed by the testator, and for the will to be witnessed by an "authorized person" in addition to the standard witnesses required under state law. An "authorized person" in Minnesota is anyone licensed to practice law in the state of Minnesota.
If you reside in a country and have citizenship in another or have property in other countries, speak with an attorney licensed in your jurisdiction of residence who has experience with international wills.
In order to prevent just those type of headaches, the 1973 Convention providing a Uniform Law on the Form of an International Will provides for unified requirements to cause a writing to be valid in any signatory country. Following these requirements allows for a one-document fits all affected jurisdictions approach to drafting a will, assuming all the jurisdictions are signatory countries. The convention is a great help for those living in an increasingly globalized society and can be found at http://www.unidroit.org/english/conventions/1973wills/1973wills-e.htm
However, because probate law is ruled by the states and not the federal government, the benefits of this treaty only clearly apply to residents of those states which have adopted the provisions of the treaty into their probate code. Luckily for Minnesota residents, Minnesota has adopted the provisions in Minnesota Statutes 524.2-1001 et al.
Some of the major additions to a normal will that are requirement for international wills, is for each page to be numbered, for each page to be signed by the testator, and for the will to be witnessed by an "authorized person" in addition to the standard witnesses required under state law. An "authorized person" in Minnesota is anyone licensed to practice law in the state of Minnesota.
If you reside in a country and have citizenship in another or have property in other countries, speak with an attorney licensed in your jurisdiction of residence who has experience with international wills.
I did my will... now where do I put it?
Okay, so you finally got it together and got a will signed. First of all, good for you! Far too many people put it off, never get around to it and their friends and family are eventually left to clean up an intestate mess. Now, what do you do with the binder, file or otherwise fancy document you left the attorney's office with? Here are some options.
1. Leave it with the attorney. Some offices provide this service and it sounds good, what better place to put it than your attorney's office? However, I wouldn't necessarily recommend it. The main reason is that hopefully you won't need the will for many, many, many years. In that time, the attorney could retire or close shop or the firm could merge with another. This could leave your loved ones scrambling to find the original. Sure, you may have a copy, but many probate courts will put up additional hoops if you can't provide the original.
2. Put it in your safe deposit box. It is secure, but consider that you will not be around to open it up. Check into how your love ones can get access when you're gone. There have been far too many instances where a will is in a deposit box with no one able to get access to it.
3. Check your county courthouse. In my county, Fillmore County, Minnesota, you can deposit your will for a one time minimal fee of around $20.00. This is a great, cost-effective option, because you know the county courthouse isn't going anywhere.
Of course, you can always keep the will in your home, but you should keep it in a waterproof and fireproof safe and let your love ones know how to get access to it if you're not there to do it.
Congratulations on getting that will done, now make sure your investment is taken care of.
1. Leave it with the attorney. Some offices provide this service and it sounds good, what better place to put it than your attorney's office? However, I wouldn't necessarily recommend it. The main reason is that hopefully you won't need the will for many, many, many years. In that time, the attorney could retire or close shop or the firm could merge with another. This could leave your loved ones scrambling to find the original. Sure, you may have a copy, but many probate courts will put up additional hoops if you can't provide the original.
2. Put it in your safe deposit box. It is secure, but consider that you will not be around to open it up. Check into how your love ones can get access when you're gone. There have been far too many instances where a will is in a deposit box with no one able to get access to it.
3. Check your county courthouse. In my county, Fillmore County, Minnesota, you can deposit your will for a one time minimal fee of around $20.00. This is a great, cost-effective option, because you know the county courthouse isn't going anywhere.
Of course, you can always keep the will in your home, but you should keep it in a waterproof and fireproof safe and let your love ones know how to get access to it if you're not there to do it.
Congratulations on getting that will done, now make sure your investment is taken care of.
Monday, February 1, 2010
Dealing with your E-Estate
Estate planning and probate generally deal in concepts that have been around for centuries, like life estates and fiduciary duties. However, there's a new frontier in estate planning, your digital estate.
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/01/31/BUEV1BPKAR.DTL
Some companies have popped up to offer services to email your contact list upon your death, provide access to your usernames and passwords to your next of kin, and closing out your facebook account.
As the twitter generation grows older, we may see many people who find this to be a useful service.
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/01/31/BUEV1BPKAR.DTL
Some companies have popped up to offer services to email your contact list upon your death, provide access to your usernames and passwords to your next of kin, and closing out your facebook account.
As the twitter generation grows older, we may see many people who find this to be a useful service.
Theft from Estate
The Chicago Tribune is reporting on an alleged $140,000 theft from an Iowa estate.
http://www.chicagotribune.com/news/chi-ap-ia-iowa-estatetheft,0,7766795.story
Unfortunately, theft from estates can happen. When you get your will together, you will name a "personal representative", which is also known as an executor. This person will have the responsibility and access to deal with your financial affairs after your death. This person has a lot of power, so be sure to name someone who you trust with your finances.
If you think a personal representative is not entirely on the up-and-up in dealing with an estate, there are some things you can do if you are a creditor, family member or other interested person. Some examples are requesting an accounting of the estate from the personal representative or petitioning the court to supervise the personal representatives actions. If you are concerned about a personal representative's conduct, contact a licensed attorney.
http://www.chicagotribune.com/news/chi-ap-ia-iowa-estatetheft,0,7766795.story
Unfortunately, theft from estates can happen. When you get your will together, you will name a "personal representative", which is also known as an executor. This person will have the responsibility and access to deal with your financial affairs after your death. This person has a lot of power, so be sure to name someone who you trust with your finances.
If you think a personal representative is not entirely on the up-and-up in dealing with an estate, there are some things you can do if you are a creditor, family member or other interested person. Some examples are requesting an accounting of the estate from the personal representative or petitioning the court to supervise the personal representatives actions. If you are concerned about a personal representative's conduct, contact a licensed attorney.
Thursday, December 31, 2009
Can Family Court Trump Your Clear Wishes?
Last week, the Minnesota Court of Appeals ruled in a case, brought as a part of a divorce, that may have major implications for estate planning.
In re the Marriage of Angell, A09-349, the Court reviewed a family court decision to split insurance and survivor's benefits between parents of soldier killed in Iraq, even when the beneficiary designation clearly named only the mother as beneficiary. Generally, survivor benefits, inheritances, insurance proceeds and the like are considered non-marital property. This designation ends up following the probate courts' rule of thumb, to follow the decedent's wishes.
In this case, the family court used a family law statute which allows the court to award non-marital property, if in the interest of fairness, and split the proceeds. Court of Appeals remanded, or gave it back the lower court, on the basis that the court couldn't apply the Minnesota statute to federal benefits because federal law prohibits attachment to federal benefits and the federal law trumps. However, the ruling leaves open the question of whether the family court can go against a decedent's wishes and give some assets to a beneficiary's spouse when a federal statute is not involved.
It looks likely that this will be appealed to the Minnesota Supreme Court, which may or may not give more guidance.
You can find the case here,
http://www.lawlibrary.state.mn.us/archive/ctappub/0912/opa090349-1229.pdf
In re the Marriage of Angell, A09-349, the Court reviewed a family court decision to split insurance and survivor's benefits between parents of soldier killed in Iraq, even when the beneficiary designation clearly named only the mother as beneficiary. Generally, survivor benefits, inheritances, insurance proceeds and the like are considered non-marital property. This designation ends up following the probate courts' rule of thumb, to follow the decedent's wishes.
In this case, the family court used a family law statute which allows the court to award non-marital property, if in the interest of fairness, and split the proceeds. Court of Appeals remanded, or gave it back the lower court, on the basis that the court couldn't apply the Minnesota statute to federal benefits because federal law prohibits attachment to federal benefits and the federal law trumps. However, the ruling leaves open the question of whether the family court can go against a decedent's wishes and give some assets to a beneficiary's spouse when a federal statute is not involved.
It looks likely that this will be appealed to the Minnesota Supreme Court, which may or may not give more guidance.
You can find the case here,
http://www.lawlibrary.state.mn.us/archive/ctappub/0912/opa090349-1229.pdf
Friday, December 18, 2009
The Dark Side of POAs.
CNN is reporting that the Anthony Marshall trial is entering the sentencing phase.
http://www.cnn.com/2009/CRIME/12/18/new.york.astor.marshall/
Mr. Marshall is the son of New York socialite, Brooke Astor. Mr. Marshall was convicted of grand larceny and scheming to defraud his mother's estate. During his mother's life, he used his power as Ms. Astor's power of attorney to take money out of her estate for himself. Ms. Astor's will left most of her estate, upon her death, to various charities.
This case illustrates the need for caution when executing power of attorneys. POAs are useful tools to make sure your financial affairs, like paying for the heating bill to keep your pipes from freezing... (can you tell I'm writing this in Minnesota, in January?) etc, are taken care of if you are alive, but incapable of doing it yourself. POAs are extremely helpful in a majority of circumstances and everyone should consider executing a POA.
However, care should be taken when choosing who will have that power. A POA is like giving someone a blank check to your entire financial life. If you don't have someone you trust to act in that capacity, it may be better not to execute a POA.
This is especially true in states, including Minnesota, where durable POA's (those which are effective when someone does not have the capacity to make financial and legal decisions) are effective from the moment they are signed. That means that the person you name in your POA, has the blank check even before you are incapacitated.
All the caution in the world may not have prevented the Astor tragedy, but everyone should carefully consider who they name in their POA.
http://www.cnn.com/2009/CRIME/12/18/new.york.astor.marshall/
Mr. Marshall is the son of New York socialite, Brooke Astor. Mr. Marshall was convicted of grand larceny and scheming to defraud his mother's estate. During his mother's life, he used his power as Ms. Astor's power of attorney to take money out of her estate for himself. Ms. Astor's will left most of her estate, upon her death, to various charities.
This case illustrates the need for caution when executing power of attorneys. POAs are useful tools to make sure your financial affairs, like paying for the heating bill to keep your pipes from freezing... (can you tell I'm writing this in Minnesota, in January?) etc, are taken care of if you are alive, but incapable of doing it yourself. POAs are extremely helpful in a majority of circumstances and everyone should consider executing a POA.
However, care should be taken when choosing who will have that power. A POA is like giving someone a blank check to your entire financial life. If you don't have someone you trust to act in that capacity, it may be better not to execute a POA.
This is especially true in states, including Minnesota, where durable POA's (those which are effective when someone does not have the capacity to make financial and legal decisions) are effective from the moment they are signed. That means that the person you name in your POA, has the blank check even before you are incapacitated.
All the caution in the world may not have prevented the Astor tragedy, but everyone should carefully consider who they name in their POA.
Subscribe to:
Posts (Atom)