If a trustee is no longer trustworthy, a protector can look out for your interests

by Tom Alberts July 8, 2016

Summary: Trust protectors can be appointed to oversee the actions of a successor trustee. Grantors often authorize trust protectors to resolve disputes among the trustee and beneficiaries and give them veto power over spending and investment decisions involving trust assets.

Who can you count on to make the proper decisions regarding a trust you’ve established for your estate plan? More succinctly put: Who can you trust with your trust?

A simple answer is a self-appointed successor trustee, which can be a person or an institution like a bank’s trust department. As the term implies, a trustee should be someone or an institution that is highly trustworthy to make fiduciary decisions in the ongoing management, administration and distribution of the assets of a trust to its beneficiaries.

Situations arise, however, that may require oversight of the trustee. Sometimes there’s a need for a watchdog to police those entrusted to manage a trust and provide an additional check and balance between the grantor’s intentions and the trustee’s actions.

Experts say the use of trust protectors rose in popularity in the 1980s and provided grantors with guardian angels to look after trusts created in foreign jurisdictions.

Since then, grantors have utilized trust protectors for a wide variety of other purposes. One may be to arbitrate disputes that occur between trustees and beneficiaries. Another could be to add or remove a trust beneficiary or the successor trustee. A trust protector also might oversee the accounting of the trust and fees paid to the successor trustee. Or, the trust protector might be given sway over specific fiduciary duties usually assigned to the trustee, such as investment decisions or management of a business owned by the trust.

Grantors also assign powers that a trust protector can use without petitioning a court for approval. Among them are the abilities to amend or terminate the trust or move it to another state for tax advantages.

‘Where there is wealth, there is greed’

It’s important to focus on the term “trust” as a verb when thinking about who to allow to pull the levers on your legacy, advises Forbes contributor and lawyer Jay Adkisson.

“Whether the trust is small or large, we have learned at least one thing after hundreds of years of trust jurisprudence: Trustees often cannot be trusted. The bigger the trust, the more likely the problem,” Adkisson writes. “The temptation is just too great. The whole idea of a trust is to accumulate wealth. Where there is wealth, there is greed, and where there is greed, you’ll find temptation – and often misconduct.”

For instance, an ill-motivated trustee may be interested in boosting his compensatory fees paid by the trust. Disputes among beneficiaries can prompt litigation, and litigation can lead to more fees, Adkisson says. Another scenario might entail a trustee instigating litigation to procure referral fees from law firms as a reward for new business. There are numerous other ways for a trustee to engage in misconduct and “milk” a trust.

Problems can develop when the trustee is both a family member and a beneficiary of the trust. The 2018 case involving retired astronaut Edwin “Buzz” Aldrin serves as an example. Aldrin sued his successor trustee – his son – alleging misuse of trust funds. In turn, the son petitioned court to have his father declared incompetent and placed under his guardianship. A trust protector may have been able to resolve the family dispute before it resulted in litigation and wound up making headlines. In other words, a trust protector can purge a trust predator.

To avoid conflicts of interest, grantors are often advised to avoid designating a family member as a trust protector. A better choice may be an accountant or financial adviser; or a law firm or bank could be asked to appoint someone. An impartial overseer may be the best choice to make potentially controversial decisions on adding or removing beneficiaries, allowing discretionary distributions, selling specific assets or other matters.

A brain trust for your trust

Trust protectors also can play an important role beyond the oversight function and serve as a consultant and adviser for the trustee. In situations where assistance may be needed to manage financial instruments within a trust – such as matters related to taxation, investments and real estate – a trust protector with expertise in those areas can come in handy.

Another duty may be to protect beneficiaries – often from themselves or unexpected situations. External events – a beneficiary’s bankruptcy or substance abuse problem, for example – can put at risk assets intended to serve as an inheritance. Those risks can be alleviated if a trust protector is empowered to amend the terms of the trust and change distributions as life’s events warrant.

The authority to transfer assets from one trust to another trust, known as “decanting,” can be another important role for the protector, especially when circumstances have changed significantly since the trust was established. Consider a scenario in which a beneficiary becomes disabled and eligible to receive Supplemental Security Income and Medicaid. A trust protector could transfer funds and establish a special (supplemental) needs trust that would preserve eligibility for those government benefits. A windfall from an inheritance then would be shielded from obligations to pay for medical care.

In most situations, however, trust protectors are unnecessary and state laws are not uniform, Adkisson cautions. “Still, many circumstances arise in which the use of trust protectors can aid in enhancing the oversight of trust matters and reduce the potential for litigation.”

Whether or not a trust protector is necessary can be determined in the process of developing an estate plan. Legacy Assurance Plan membership is one option for consumers to consider. Members are educated in estate planning and provided with access to numerous resources to achieve their planning objectives.

Legacy Assurance Plan is an estate planning services company. Its goal is to educate people on a variety estate planning issues. It also provides access to a variety of resources to help its members achieve their estate planning objectives. Whether your goal is as simple as protecting your family and loved ones from the costs, delays and hassles of probate or as complex as providing for a disabled child when you no longer can, Legacy Assurance Plan can help you find the information and resources you need to privatize your estate.

This article is published by the Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services-company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website atwww.legacyassuranceplan.com.

This article written and published by:
Legacy Assurance Plan
8039 Cooper Creek Blvd
University Park, Florida 34201
844.306.5272 (Phone)
info@legacyassuranceplan.com(email)
#legacyassuranceplan
@assuranceplan

If a trustee is no longer trustworthy, a protector can look out for your interests

by Tom Alberts July 8, 2018

Summary: Trust protectors can be appointed to oversee the actions of a successor trustee. Grantors often authorize trust protectors to resolve disputes among the trustee and beneficiaries and give them veto power over spending and investment decisions involving trust assets.

Who can you count on to make the proper decisions regarding a trust you’ve established for your estate plan? More succinctly put: Who can you trust with your trust?

A simple answer is a self-appointed successor trustee, which can be a person or an institution like a bank’s trust department. As the term implies, a trustee should be someone or an institution that is highly trustworthy to make fiduciary decisions in the ongoing management, administration and distribution of the assets of a trust to its beneficiaries.

Situations arise, however, that may require oversight of the trustee. Sometimes there’s a need for a watchdog to police those entrusted to manage a trust and provide an additional check and balance between the grantor’s intentions and the trustee’s actions.

Experts say the use of trust protectors rose in popularity in the 1980s and provided grantors with guardian angels to look after trusts created in foreign jurisdictions.

Since then, grantors have utilized trust protectors for a wide variety of other purposes. One may be to arbitrate disputes that occur between trustees and beneficiaries. Another could be to add or remove a trust beneficiary or the successor trustee. A trust protector also might oversee the accounting of the trust and fees paid to the successor trustee. Or, the trust protector might be given sway over specific fiduciary duties usually assigned to the trustee, such as investment decisions or management of a business owned by the trust.

Grantors also assign powers that a trust protector can use without petitioning a court for approval. Among them are the abilities to amend or terminate the trust or move it to another state for tax advantages.

‘Where there is wealth, there is greed’

It’s important to focus on the term “trust” as a verb when thinking about who to allow to pull the levers on your legacy, advises Forbes contributor and lawyer Jay Adkisson.

“Whether the trust is small or large, we have learned at least one thing after hundreds of years of trust jurisprudence: Trustees often cannot be trusted. The bigger the trust, the more likely the problem,” Adkisson writes. “The temptation is just too great. The whole idea of a trust is to accumulate wealth. Where there is wealth, there is greed, and where there is greed, you’ll find temptation – and often misconduct.”

For instance, an ill-motivated trustee may be interested in boosting his compensatory fees paid by the trust. Disputes among beneficiaries can prompt litigation, and litigation can lead to more fees, Adkisson says. Another scenario might entail a trustee instigating litigation to procure referral fees from law firms as a reward for new business. There are numerous other ways for a trustee to engage in misconduct and “milk” a trust.

Problems can develop when the trustee is both a family member and a beneficiary of the trust. The 2018 case involving retired astronaut Edwin “Buzz” Aldrin serves as an example. Aldrin sued his successor trustee – his son – alleging misuse of trust funds. In turn, the son petitioned court to have his father declared incompetent and placed under his guardianship. A trust protector may have been able to resolve the family dispute before it resulted in litigation and wound up making headlines. In other words, a trust protector can purge a trust predator.

To avoid conflicts of interest, grantors are often advised to avoid designating a family member as a trust protector. A better choice may be an accountant or financial adviser; or a law firm or bank could be asked to appoint someone. An impartial overseer may be the best choice to make potentially controversial decisions on adding or removing beneficiaries, allowing discretionary distributions, selling specific assets or other matters.

A brain trust for your trust

Trust protectors also can play an important role beyond the oversight function and serve as a consultant and adviser for the trustee. In situations where assistance may be needed to manage financial instruments within a trust – such as matters related to taxation, investments and real estate – a trust protector with expertise in those areas can come in handy.

The authority to transfer assets from one trust to another trust, known as “decanting,” can be another important role for the protector, especially when circumstances have changed significantly since the trust was established. Consider a scenario in which a beneficiary becomes disabled and eligible to receive Supplemental Security Income and Medicaid. A trust protector could transfer funds and establish a special (supplemental) needs trust that would preserve eligibility for those government benefits. A windfall from an inheritance then would be shielded from obligations to pay for medical care.

Another duty may be to protect beneficiaries – often from themselves or unexpected situations. External events – a beneficiary’s bankruptcy or substance abuse problem, for example – can put at risk assets intended to serve as an inheritance. Those risks can be alleviated if a trust protector is empowered to amend the terms of the trust and change distributions as life’s events warrant.

In most situations, however, trust protectors are unnecessary and state laws are not uniform, Adkisson cautions. “Still, many circumstances arise in which the use of trust protectors can aid in enhancing the oversight of trust matters and reduce the potential for litigation.”

Whether or not a trust protector is necessary can be determined in the process of developing an estate plan. Legacy Assurance Plan membership is one option for consumers to consider. Members are educated in estate planning and provided with access to numerous resources to achieve their planning objectives.

Legacy Assurance Plan is an estate planning services company. Its goal is to educate people on a variety estate planning issues. It also provides access to a variety of resources to help its members achieve their estate planning objectives. Whether your goal is as simple as protecting your family and loved ones from the costs, delays and hassles of probate or as complex as providing for a disabled child when you no longer can, Legacy Assurance Plan can help you find the information and resources you need to privatize your estate.

This article is published by the Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services-company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website atwww.legacyassuranceplan.com.

This article written and published by:
Legacy Assurance Plan
8039 Cooper Creek Blvd
University Park, Florida 34201
844.306.5272 (Phone)
info@legacyassuranceplan.com(email)
#legacyassuranceplan
@assuranceplan

Intestacy is not an ailment,
but it can be painful to loved ones

by Tom Alberts July 2, 2018

Summary: When someone dies without a valid last will and testament, a probate judge will follow state intestacy laws to determine how their estate is distributed. The laws don’t take into consideration the specific wishes of the deceased.

Intestacy is not a disease, but it should give you heartburn thinking about it. It’s described as the condition of an estate of a person who dies without having executed a valid last will and testament. In other words, if you don’t have valid will when you die, you’ll lose direct control of your financial legacy.

Intestacy laws, which vary from state to state, determine who is entitled to inherit property when no guidance from a will is given and no estate plan is in place.

One’s heartburn should begin with the realization that once you’re gone, a probate judge, unaware and legally blind of your true intentions, will decide the fate of your estate and divvy up your assets.

Imagine someone pondering a will that proclaims: “I hereby leave to the state and a probate judge all the necessary authority to decide in a public forum who receives my property and how much they shall receive, regardless of my actual wishes. If necessary, the court can appoint anybody it sees fit, without my input, to serve as guardian of my minor children. In addition, please charge my estate 3 to 8 percent of its value for the services of the probate process.”

It’s hard to fathom someone of sound mind contemplating such a declaration. But that’s essentially what happens when an estate lacks a properly executed will.

In intestacy, there’s no effort to investigate what the dearly departed’s wishes truly were. An inquiry into proper and well-thought intentions? No way. Judicial interrogations to determine the undisputed and desired outcome? That’s not likely, either.

Generally, intestacy statutes distribute estates to the surviving spouse and children and their descendants and climb up and down branches of the family tree as necessary to determine other beneficiaries. State laws on the method of property distribution vary but generally provide that recipients are the closest surviving relatives.

The order of inheritance in most states is the surviving spouse, children, parents, siblings, nieces and nephews and next of kin. If you lack survivors, the state treasury will gladly consume the fruits of your life’s labor – not your favorite charity, beloved friend or treasured pet.

When a person dies without a will, he is described to have died "intestate."

There are a plenty of examples to illustrate the ills of intestacy, but consider just one mess caused in Texas when a woman’s husband died without a will.

The husband was survived by two children from prior relationships. The woman had lived with her husband in a home he bought before they were married.

The lack of a will suddenly put the home in play. Would the children seek the sale of the home in order to collect their share of dad’s assets? That’s because in Texas, the surviving spouse is entitled to half of the couple’s community property but only one-third of the deceased spouse’s personal property, and the children would get dad’s two-thirds in equal shares. Since dad owned the house before marrying his surviving spouse, she’s only entitled to one-third of the dwelling’s value.

If his dying wish was to risk leaving his wife without a home and cause a major rift among his survivors, intestacy laws are able tohelp make that happen. Intestate also means a lengthy wait – usually several months and sometimes years – for the potentially costly legal process of probate to conclude.

Being intestate has unintended consequences, which is why proper estate planning is always a smart move.

Avoiding probate and ensuring that your wishes are followed begins with a properly executed last will and testament. In the estate planning process, there are other options to consider, such as a creating a living will and establishing trusts. That way, the distribution of your estate is determined by you, not a judge, and uncertainty, stress and the possibility of a legal challenge is minimized.

One option to consider is membership in Legacy Assurance Plan, which educates its members on a variety of estate planning options and provides access to numerous resources to achieve planning objectives.

Legacy Assurance Plan is an estate planning services company. Its goal is to educate people on a variety estate planning issues. It also provides access to a variety of resources to help its members achieve their estate planning objectives. Whether your goal is as simple as protecting your family and loved ones from the costs, delays and hassles of probate or as complex as providing for a disabled child when you no longer can, Legacy Assurance Plan can help you find the information and resources you need to privatize your estate.

This article is published by the Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services-company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website atwww.legacyassuranceplan.com.

This article written and published by:
Legacy Assurance Plan
8039 Cooper Creek Blvd
University Park, Florida 34201
844.306.5272 (Phone)
info@legacyassuranceplan.com(email)
#legacyassuranceplan
@assuranceplan

Buzz Aldrin, photographed by fellow astronaut Neil Armstrong, walking on the surface of the moon on July 20, 1969.

by Tom Alberts July 2, 2018

Astronaut Buzz Aldrin launches lawsuit alleging elder abuse

Summary: Nearly 50 years ago, Buzz Aldrin made history during the famous Apollo 11 moon landing. Nowadays, he’s embroiled in a legal fight with a former business manager and two of his adult children who claim he’s incompetent and seek to be appointed as his co-guardians. Meanwhile, Aldrin and his attorneys allege his children and former employee are engaged in elder abuse and squandering his funds. 

Edwin “Buzz” Aldrin was the second person to set foot on the moon when he followed Neil Armstrong down the ladder to the lunar surface in the summer of 1969. 

These days, however, Aldrin finds himself going toe-to-toe with two of his adult children and a former business manager, dealing with the gravity of alleged elder exploitation.

Aldrin, 88, a retired Air Force colonel who was a member of the Apollo 11 crew and is a recipient of the Presidential Medal of Freedom and Congressional Gold Medal, filed a lawsuit in Brevard County, Florida, accusing them of financial malfeasance and making slanderous claims that he suffers from dementia.

In the lawsuit filed June 7, Aldrin accuses two of his children of conspiring with a former business manager to misuse his funds, control his business and personal affairs and attempting to strip him of his independence by requesting they be appointed his co-guardians. In May, the two Aldrin children petitioned a Florida court for guardianship, claiming Buzz Aldrin is in a state of “cognitive decline.”

The lawsuits come a year before the 50th anniversary of the famous moon landing that was witnessed on live TV by an estimated 600 million viewers. Five decades later, millions of earthlings are watching a legal drama unfold involving one the space program’s most venerated stars. It’s a squabble that could jettison the family’s reason to celebrate the upcoming milestone.

According to court documents, Aldrin established a revocable trust in October 2016 and appointed son Andrew Aldrin as his successor trustee with power-of-attorney authority over his father’s financial affairs. Janice and Andrew Aldrin and recently fired business manager Christina Korp filed a petition in Brevard County that claims Buzz Aldrin “suffers from memory loss, delusions, paranoia, and confusion,” according to court filings. The petition requests the two Aldrin children be appointed co-guardians of their father.

The son also serves as an executive of business entities created by Buzz Aldrin, including Buzz Aldrin Enterprises Inc., Buzz Aldrin Space Foundation and the Buzz Aldrin Space Institute at the Florida Institute of Technology. Korp also has served as a corporate officer with some of those entities.

Buzz Aldrin’s 115-page lawsuit alleges that Andrew Aldrin and Korp “have assumed control and access to plaintiff’s personal credit cards, bank accounts, trust money, space memorabilia, space artifacts, social media accounts and all elements of the Buzz Aldrin brand.” It accuses them of establishing a “de facto guardianship” over Buzz Aldrin by controlling his “publicity, contacts and clientele for their own self-dealing and enrichment.”

Lawsuit filed on behalf of Buzz Aldrin

For years, the lawsuit alleges, Andrew Aldrin and Korp have “slandered” Buzz Aldrin by alleging he has dementia and Alzheimer’s disease. Buzz Aldrin disputes the allegations about his mental health. In April, he was evaluated by a psychiatrist who rated him as “superior to normal” on a battery of geriatric tests, according to media reports.  

“I also believe that he is perfectly capable of providing for his physical health needs, food, clothing, and shelter, and is substantially able to manage his finances and resist fraud and undue influence,” UCLA-based Dr. James Spar wrote to one of Buzz Aldrin’s lawyers. 

On June 18, the former astronaut visited the White House for President Donald Trump’s announcement directing the Department of Defense to establish a sixth military branch, the U.S. Space Force. Because of the pending lawsuits, the court appointed a social worker, a nurse, and a doctor to assess his mental and physical health, and he was scheduled for three separate examinations on June 26 and 27. An attorney for Buzz Aldrin told reporters that results of the examinations are expected sometime in July. 

The allegations go beyond financial improprieties. The son and business manager are accused of forbidding Buzz Aldrin from remarrying and “deliberately have undermined, bullied and defamed” his “personal romantic relationships.”

Hundreds of thousands of dollars have been transferred from a Morgan Stanley brokerage account and for years monthly business and personal charges up to $60,000 were made “under the guise” of trustee, power of attorney and employee, the lawsuit alleges.

Before filing the lawsuit, Buzz Aldrin’s attorney Robert H. Tourtelot sent Korp a termination letter demanding she stops using Aldrin’s financial resources and representing him in any business matters. Meanwhile, Buzz Aldrin revoked the successor trustee and power-of-attorney authorities that he had granted his son. Aldrin’s son James is not named in the lawsuit.

An attorney for Andrew and Jan Aldrin, Bernard R. Given II, disputes media characterizations of the legal battle now orbiting the family. Given denies that Andrew Aldrin and Korp misused funds and calls into question Buzz Aldrin’s mental fitness.

In a letter written to the Wall Street Journal, Given accuses the newspaper in its coverage of failing to consider “scores of anecdotal reports and observations of individuals in the space industry and colleagues of the foundation expressing serious concern to the family for Col. Aldrin’s mental state over the past several years.” 

“The decline of his mental capacity has been well known and discussed widely among his colleagues for some time,” Given writes.  

Given also asserts that there has been an “alarming growth” in Buzz Aldrin’s “increasingly lavish personal expenses, exceeding an average of $70,000 per month, that led to the transfer of monies from his savings account to pay his bills, and contributed to Andy and Jan Aldrin considering guardianship proceedings for the protection of their father.”

Andrew and Janice Aldrin issued a joint statement that says they are “deeply disappointed and saddened by the unjustified lawsuit that has been brought against us individually and against the foundation that we have built together as a family to carry on Dad’s legacy for generations to come.”

Buzz Aldrin’s lawsuit accuses Andrew Aldrin of self-dealing and breaching his fiduciary duties. Janice Aldrin is accused of conspiracy and not acting in her father’s interests. Korp faces allegations of fraud, unjust enrichment, and exploitation of the elderly.

Statement from Andrew and Janice Aldrin

Korp also issued a personal statement rejecting Buzz Aldrin’s allegations. She asserted that “almost a year ago, some people began to exert undue influence on Buzz. These individuals began to actively try to drive a wedge between Buzz and his children, and me, for what I fear is their own benefit.”

Korp insists she has been dedicated to her boss’ legacy and has “never acted on Buzz’s behalf without his full knowledge, support, and cooperation.” She adds that “something like Buzz’s competency is best handled through our justice system.”

Christina Korp statement

What’s not in dispute is the fact that Buzz Aldrin established an estate plan with a detailed trust to provide for the management of his property and disposition of his assets that appointed his son as successor trustee. These actions should have prevented this litigation. Nonetheless, Aldrin’s estate plan, something intended to keep his affairs private, has become fodder for media speculation about litigation involving family members.

You didn’t walk on the moon like Aldrin, but you still have an expectation of keeping private family matters out of public view. So, why did his plan fail? Perhaps Aldrin didn’t communicate his explicit wishes about his personal finances to his family members clearly enough. Perhaps he should have considered a co-trustee who was not a family member, power of attorney and beneficiary. Maybe he should have considered other planning options, such as the appointment of a “trust protector” – a third-party or institution to monitor his son’s actions as successor trustee. 

Whatever the circumstance, it’s a sure bet the Aldrin saga will remain in the headlines for as long the disagreements remain unresolved.

ELDER ABUSE: A GROWING CONCERN

The National Center on Elder Abuse in 1998 conducted what is considered to be the first national study on the incidence of elder abuse in the United States. The study found that nearly 500,000 people age 60 and older reported abuse or neglect in a domestic setting during 1996. It also determined that only one in five cases is likely reported to authorities. In the years since the NCEA has determined that reports of elder abuse have substantially increased and exceeded the growth of the elderly population.

The NCEA also found that in domestic settings, “perpetrators of elder abuse are much more likely to be a family member.” The center also has identified six categories of elder abuse: physical, sexual, emotional or psychological, neglect, abandonment and financial.

Financial abuse sometimes stems from an elder person’s “desire to benefit their heirs or to compensate those who provide them with care, affection or attention,” according to an Idaho Law Review article by attorney CL Dessen. 

But proving abuse isn’t easy. “It can be difficult to discern a transfer of assets made with consent from an abusive transfer,” Dessen says. 

According to AARP, all states have adopted laws that enable state agencies to investigate reports of elder abuse and provide remedies, and those suspecting abuse are encouraged to report it.

The National Center on Law and Elder Rights cites a 2014 survey of Americans age 50 to 70 that estimates annual losses from financial exploitation of the elderly as more than $36 billion. 

The center suggests some steps to take in preventing financial abuse by a power of attorney:

• Have attorneys for senior citizens draft power-of-attorney documents that require annual accountings to a third person (or more). 
• Require a second signature for large transactions.
• Put limits those with power-of-attorney authority in changing rights of survivorship and beneficiary designations.
• Restrict power-of-attorney authority to create, amend, revoke or terminate trusts.

Legacy Assurance Plan is an estate planning services company. Its goal is to educate people on a variety of estate planning issues. It also provides access to a variety of resources to help its members achieve their estate planning objectives. Whether your goal is as simple as protecting your family and loved ones from the costs, delays, and hassles of probate or as complex as providing for a disabled child when you no longer can, Legacy Assurance Plan can help you find the information and resources you need to privatize your estate.

This article is published by the Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services-company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at www.legacyassuranceplan.com. 

This article was written and published by:
Legacy Assurance Plan
8039 Cooper Creek Blvd
University Park, Florida 34201
844.306.5272 (Phone)
info@legacyassuranceplan.com (email)
#legacyassuranceplan
@assuranceplan

Intestacy is not an ailment, but it can be painful to loved ones

by Tom Alberts July 2, 2018

Summary: When someone dies without a valid last will and testament, a probate judge will follow state intestacy laws to determine how their estate is distributed. The laws don’t take into consideration the specific wishes of the deceased.

Intestacy is not a disease, but it should give you heartburn thinking about it. It’s described as the condition of an estate of a person who dies without having executed a valid last will and testament. In other words, if you don’t have a valid will when you die, you’ll lose direct control of your financial legacy.

Intestacy laws, which vary from state to state, determine who is entitled to inherit property when no guidance from a will is given and no estate plan is in place.

One’s heartburn should begin with the realization that once you’re gone, a probate judge, unaware and legally blind of your true intentions, will decide the fate of your estate and divvy up your assets.

Imagine someone pondering a will that proclaims: “I hereby leave to the state and a probate judge all the necessary authority to decide in a public forum who receives my property and how much they shall receive, regardless of my actual wishes. If necessary, the court can appoint anybody it sees fit, without my input, to serve as guardian of my minor children. In addition, please charge my estate 3 to 8 percent of its value for the services of the probate process.”

It’s hard to fathom someone of sound mind contemplating such a declaration. But that’s essentially what happens when an estate lacks a properly executed will.

In intestacy, there’s no effort to investigate what the dearly departed’s wishes truly were. An inquiry into proper and well-thought intentions? No way. Judicial interrogations to determine the undisputed and desired outcome? That’s not likely, either.

Generally, intestacy statutes distribute estates to the surviving spouse and children and their descendants and climb up and down branches of the family tree as necessary to determine other beneficiaries. State laws on the method of property distribution vary but generally provide that recipients are the closest surviving relatives.

The order of inheritance in most states is the surviving spouse, children, parents, siblings, nieces and nephews and next of kin. If you lack survivors, the state treasury will gladly consume the fruits of your life’s labor – not your favorite charity, beloved friend or treasured pet.

When a person dies without a will, he is described to have died "intestate."

There are a plenty of examples to illustrate the ills of intestacy, but consider just one mess caused in Texas when a woman’s husband died without a will.

The husband was survived by two children from prior relationships. The woman had lived with her husband in a home he bought before they were married.

The lack of a will suddenly put the home in play. Would the children seek the sale of the home in order to collect their share of dad’s assets? That’s because, in Texas, the surviving spouse is entitled to half of the couple’s community property but only one-third of the deceased spouse’s personal property and the children would get dad’s two-thirds in equal shares. Since dad owned the house before marrying his surviving spouse, she’s only entitled to one-third of the dwelling’s value.

If his dying wish was to risk leaving his wife without a home and cause a major rift among his survivors, intestacy laws are able to help make that happen. Intestate also means a lengthy wait – usually several months and sometimes years – for the potentially costly legal process of probate to conclude.

Being intestate has unintended consequences, which is why proper estate planning is always a smart move.

Avoiding probate and ensuring that your wishes are followed begins with a properly executed last will and testament. In the estate planning process, there are other options to consider, such as a creating a living will and establishing trusts. That way, the distribution of your estate is determined by you, not a judge, and uncertainty, stress and the possibility of a legal challenge is minimized.

One option to consider is membership in Legacy Assurance Plan, which educates its members on a variety of estate planning options and provides access to numerous resources to achieve planning objectives.

Legacy Assurance Plan is an estate planning services company. Its goal is to educate people on a variety of estate planning issues. It also provides access to a variety of resources to help its members achieve their estate planning objectives. Whether your goal is as simple as protecting your family and loved ones from the costs, delays, and hassles of probate or as complex as providing for a disabled child when you no longer can, Legacy Assurance Plan can help you find the information and resources you need to privatize your estate.

This article is published by the Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services-company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at www.legacyassuranceplan.com. 

This article was written and published by:
Legacy Assurance Plan
8039 Cooper Creek Blvd
University Park, Florida 34201
844.306.5272 (Phone)
info@legacyassuranceplan.com (email)
#legacyassuranceplan
@assuranceplan