Tag Archives: probate

Wills, Trusts & Dying Intestate: How They Differ

Let’s kick of the New Year by getting down to the basics! Ok, so maybe we are a day early but we are pumped too start the New Year and begin sharing more information. With that being said, let’s get started…

Most people understand that having some sort of an estate plan is a good thing. However, many of us don’t take the steps to have an estate plan prepared because we don’t understand the nuances between wills and trusts – and dying without either.

Here’s what will generally happen if you die, intestate (without a will or trust), with a will, and with a trust. For this example, we’re assuming you have children, but no spouse:

1.    Intestate. If you should die intestate, your estate will go through probate and all the world will know what you owned, what you owed, and who got what. Your mortgage company, car loan company, and credit card companies will all seek payment on balances you owed at the time of your death.

After that, Florida law will decide who gets what and when.

●      For example, Florida’s intestate statute may mandate divvying up proceeds equally among your children.

●      Your older children will get their shares immediately if they’ve attained adulthood.

●      But, the court will appoint a guardian of its choosing to manage the money for your minor children until they become adults and possibly a separate guardian to raise your minor children.

●      Shockingly, that guardian can charge a lot of money to manage the money for your minor children and be a total stranger – as can the guardian who raises your minor children.

●      If you die without a valid will, the court, not you, will decide the futures of your minor children.

Keep in mind that since your death has been published to alert valid creditors, it’s possible for predators (fake creditors) to come forth and make demands for payment – even if they’re not owed anything.

The bottom line? Dying intestate allows state law and the court to make all the decisions on your behalf – regardless of what your intent might have been. Publicity is guaranteed.

2.    Will. If you die with a valid will, your assets will still go through the probate process. However, after creditors have been satisfied, the remaining assets go to whom you’ve identified in your will.

●      If you want to leave money to your children and name a guardian for the minor ones, the court will usually abide by your wishes.

●      The same holds true if you specified that you wanted to give assets to a charity, your Aunt Sue, or your neighbor.

●      Keep in mind that predatory creditors are still an issue as your death has been publicized. Even with a will, probate is a public process.

The bottom line? While a court oversees the process, having a will allows you to tell the court exactly how you want your estate to be handled. But, a public probate is still guaranteed.

3.    Trust. If you’ve created a trust, you’ve taken control of your estate plan and your assets.  Trust assets are not subject to the probate process and one of the most important benefits of trusts is that they are private. Although notices to creditors may be published, most of the other details (your assets, who is receiving what, etc.) remain private, helping your family minimize the risk of predators.

As part of the trust drafting process, you’ll have named a trustee to manage your estate, when you are no longer able to, and provide him or her with specific instructions on how your assets should be dispersed and when.

●      One word of caution – trusts must be funded in order to bypass probate.

●      Funding means that your assets have been retitled in the name of your trust.

●      Think of your trust as a bushel basket. You must put the apples into the basket just as you must put your assets into the trust for either to have value.

Even if you have a trust prepared, you still need a will to pour any assets inadvertently or intentionally left out of your trust and to name guardians for minor children. However, this type of will is much shorter and less complicated than one that is responsible for disposing of all of your assets to your beneficiaries.

The bottom line? Trusts allow you to maintain control of your assets through your chosen trustee, avoid probate, and leave specific instructions so that your children are taken care of – without receiving a lump sum of money at an age where they are more likely to squander it or have it seized from them.

Don’t let the will versus trust controversy slow you down. Call our office today so we can answer any questions you may have and put together an estate plan that works for you and your family whether it be a will, trust, or both!

 Call (954) 999-9683 for your free consultation.

The Legacy Law Firm – Where Your Legacy Lives On

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What Happens to Your Student Loans When You Die?

If you’ve been paying attention to the news, you know that student loans are bigger and more common than ever before. There is currently over $1.45 trillion in outstanding student loan debt in the United States, and 42 million Americans have some amount of student loan debt (the average borrower owes over $30,000). Despite student loans being incredibly common, there is still a lot student loan borrowers don’t know about their debts.

One in three consumers over the age of 40 are still paying on their student loans. Are you one of them? If you are, you may have questions about how to think about your student debt in the context of your collected wealth. Most importantly, what happens to student debt after you pass?

Federal v. Private Loans

Student loans are issued either by the federal government or a private lender, like a bank. Depending on which kind of student loan you have, there will be a different impact on your loved ones when you pass.

If you have federal student loans, the news is generally pretty good. Federal student loans are forgiven when the student borrower dies, so there will be no impact on your estate or any inheritance you wish to pass on to your loved ones. The executor of your estate or another loved one will simply need to provide a copy of the death certificate to your loan servicer, and the debt will be forgiven without any tax penalty.

Federal Parent PLUS loans, which are taken out by parents on behalf of their children, are forgiven on the death of the student for whom the loan was issued or the parent who signed for the loan. However, there may be some tax implications. The parent whose child dies before a Parent PLUS loan is repaid will receive a form 1099-C when the debt is discharged. The amount of the discharged debt will be considered taxable income to the parent. Depending on the balance due on the debt, this can cause a significant tax liability for the parent.  

While federal loans all contain some protections for student borrowers in their terms, private loans are mixed. Some private lenders may also offer a death discharge if the student borrower dies. However, more commonly the lender will treat the debt like any other and go after the balance when the student borrower dies.

When private lenders issue student loans, they sometimes will require a cosigner to guarantee the loan. If a private student loan has a cosigner, this adds another layer of complexity. A cosigner is equally responsible for student loan liability as the student borrower, so he or she will remain liable for the balance of the loan if the student passes away before it is paid off. Some lenders may even consider the student’s death a “default” and bring the entire balance of the debt to come due immediately.

To avoid these consequences, it is a good idea to see if your lender will allow you to apply for a cosigner release. Lenders will sometimes allow a cosigner to be released from liability if a certain amount of the debt has been paid off and the borrower can show a consistent payment history.

A Side Note about Debts and Probate

Probate is the process by which a state court will assess the validity of your will, name an executor, pay debts, and then distribute the remaining assets in accordance with your will. 

One of the first duties of an executor is to assess any debts owed and assets held by the estate to determine if it is solvent or insolvent. A solvent estate is one that has enough assets to pay off all outstanding debts. An insolvent estate owes more than it holds. 

Even if an estate is solvent, creditors are paid before any remainder is distributed according to the will. For heirs, this may mean that their inheritance is significantly (or entirely) reduced by the time all debts have been satisfied. 

The probate process is completed once all outstanding liabilities are satisfied and the remainder of the estate (if any) is distributed to the decedent’s heirs. 

Protecting Your Estate from Student Loan Debt

One way to prevent your private student loan debt from impacting the inheritance you leave for your loved ones is to take out a life insurance policy in the amount of the balance owed. This would provide enough funds for your loved ones and heirs to immediately pay back the balance owed on your student debt and keep your estate solvent.

Another way to ensure that your loved ones will receive a portion of your wealth after you pass is to keep as many of your assets as possible out of probate. This can be done by naming beneficiaries on all financial accounts, retirement accounts, and insurance policies. Beneficiary designation forms supersede anything written in a will, so these accounts will pass directly to your named beneficiary without passing through probate. If you name your estate or someone who has deceased as your beneficiary, however, the assets from these accounts may revert to your estate and be included in the probate process.

Another way to keep assets out of probate is to place them into a trust. Assets owned by a trust can only be distributed to the named beneficiaries under the guidelines of the trust. Creating a trust to distribute assets to your heirs will protect your wealth from creditors, including private student loan holders. An estate planning attorney can advise you on the best ways to use trusts to ensure your loved ones are cared for after you pass – even if you still have outstanding student loan debt.

How Will My Child’s Student Loan Debt Impact Their Inheritance?

Talking to your children about money – especially about debt – can be awkward, but it is absolutely necessary. Not only will your children be able to learn from your experiences, but it is important for your estate planning strategy to understand your children’s liabilities. If your child has significant student loan debt, difficulty repaying student loan debt, or is in default on student loans, you will want to take steps to minimize the chance your estate will end up with creditors, rather than with your heir.

 If you leave any assets to a child who has defaulted on student loans, these assets will be vulnerable to collection efforts. Student loan debts do not go away (even in bankruptcy), so if your child defaulted on his or her student loans years ago, any gift or inheritance he or she receives may be at risk.

One way to protect your child’s inheritance is to place assets into a trust. A trust can help ensure that your estate is passed on and used according to your wishes. Establishing a trust and protecting the assets from a beneficiary’s creditors is technical, but it is both possible and legal. As the grantor, you can limit when and how funds are distributed to beneficiaries and specify the ways in which you want the funds to be used. Because the funds have limited use, creditors would not be able to seize these assets to pay back a loan in default.

Contact an Experienced South Florida Estate Planning Attorney Today

If you are not sure you need an attorney, you can always come in for a consultation to discuss your situation. Please contact our office if you or your loved ones are concerned about student debt. We are happy to talk through your loans with you and come up with a solution that protects your loved ones.

Call us today at 954-999-9683. or contact us online to schedule your initial consultation with one of our experienced estate planning attorneys today.

What Is Your Greatest Asset?

I try my best to set aside time weekly to read through the latest trends and updates in law when it comes to estate planning and probate administration.  An article I read recently discussed “the client’s greatest asset” and defined this asset as the home.  The article went on to discuss the wonderful benefits of the Florida homestead exemption, a topic I will discuss in greater detail in the near future I’m sure.  While I agree that your home is a great asset, one in which each American can agree they worked hard for and take pride in, I don’t necessarily believe it’s the greatest.  Before I share what I believe to be your greatest asset, let’s first define the word asset. An asset can be a thing, quality or person and it’s something of great value.  With that being said, I believe many would agree that their greatest asset is their family.  Whether your family consists of you and your significant other/spouse, your children, a great group of friends – whatever family is to you I’m almost certain that you would agree that they are the most valuable asset in your life.  Now for the reason I’m posting this blog:  while your home has the Florida Constitution looking out for it (i.e. The Homestead Exemption) your family has, well, you.  This is why it’s so crucial that you take the time today to plan and ensure your greatest asset is not just considered but protected.

A comprehensive estate plan is one that plans for both death and incapacity.  You continue to maintain a certain degree of control by nominating individuals ahead of time that would step in to be your voice in the event of a medical emergency, another individual to cover financial affairs and a Trustee to manage your assets until you are fit to do so.  Remember: self care is not selfish.  In order to take care of others you must first take care of yourself which is why this is a crucial step and should not be overlooked.  Many clients haven’t previously considered or simply do not want a durable power of attorney or healthcare surrogate, but you should truly plan ahead for your own incapacity. It will make an already stressful situation a little easier.  Should you pass away, the plan will lay out the manner and timing in which your assets will be distributed to your loved ones.  This is a great feature if you anticipate having younger beneficiaries since you can nominate a Trustee to manage their share until they reach a certain age (i.e. many individuals feel 25 – 30 years old is an age of maturity).  Certain Revocable Trusts also provide your beneficiaries with limited asset protection, a feature that is favored by many parents who worry about their child facing a divorce in the near future.  You can even provide for beloved pets or make charitable donations.  Whatever your goal may be, our attorneys are ready to discuss the various ways in which you can achieve it.

Don’t hesitate when it comes to your greatest asset.  Take some time out of your busy schedule, jot down your goals and sit with an experienced estate planning attorney.  Most people don’t regret being prepared or proactive.  Plan today and rest easy tomorrow.

The Legacy Law Firm, PLLC. ~ Where Your Legacy Lives on