Estate Planning for your Vacation Home

If you own a vacation home, it may have great significance to you from a personal, family, financial and emotional perspective.   How and whether that home will be passed on to others is a serious concern that can result in extremely disruptive and financially ruinous differences among your family.  Thus, planning for how, when and whether that home will pass to your loved ones is essential.

For example, some of your family members may have very strong emotional attachments to your vacation home, while others may not.  Some of your family members may be able to afford to travel to and use the vacation home frequently, while others may not.  Some of your family members may be able to afford to pay their share of ongoing taxes, insurance, maintenance and repair of the home, while others may not.

Following are some important points to consider in succession planning for your vacation home.

  • Have an open discussion with your intended beneficiaries to find out their interest in ownership of the vacation home.  Discuss their ability to pay expenses and look after the property, as well as their expected use of the property.
  • Find out what the potential tax burden associated with the vacation home will likely be, and consider how this liability will be funded.  Remember taxes or fees may be due at the time of transfer as well as on an ongoing basis.  If there is a liquidity issue, consider available options, such as life insurance if the tax burden will not easily be payable by your beneficiaries or estate.
  • If you are contemplating making a gift of the vacation home to family members during your lifetime or on death, legal and professional advice should be sought on how best to plan and structure the gift.
  • Consider applicable options in your situation to passing down your vacation home, including providing a flexible mechanism in your will allowing your beneficiaries the option to purchase the vacation home or receive it as part of their share of the estate.
  • Consider a co-owner agreement for joint owners/beneficiaries of a vacation home.
  • Consult a professional advisor before purchasing a vacation home located in another jurisdiction, particularly in another country.  If you already own one, seek professional advice on succession planning options.
Posted in Community Property, deed, Estate Planning, Gift Tax, Inheritance, life insurance, Probate, Tax, Trusts, Wills | Tagged , , , , , , | Comments Off

The Importance of Special Needs Planning

If you have a special needs child, adult child or you provide for such a person in your will (for example, leaving funds to a special needs person who may be your nephew, granddaughter, or the child of someone you designate in your will), you should consult with an attorney familiar with the government benefits such people typically receive and how to protect them with Special Needs Trusts.  If you do not, you may inadvertently disqualify such person from receiving those government benefits even if they have been receiving them for years.

Reprinted below is an article I posted in 2014 regarding planning for special needs.

How to plan for when your special needs student wants to live independently

Reprinted from Dallas Morning News blogspecial needs

By Robin LeoGrande/Special Needs Insider

Here’s a new idea for students with special needs in North Texas: Having housing available to meet transition plans that include moving into more independent housing options soon after students graduate high school (or “age into adulthood”). This would enable graduates move into independent living with the friends they want to live with and the supports they need.

Families of any age student with special needs should plan for where their student will live as an adult.

So how does a family plan for transition into independent housing? Here are some suggestions.

  1. Estimate at what age the student would like to live independently.
  2. Ask yourself: What are the three most critical independent living skills that the student needs to learn? Practice at home and include appropriate goals in the Individual Education Plan. As these skills improve, add more skills to learn.
  3. Have a plan to save money to help your child live independently. Whatever a family can afford will help.
  4. See an attorney about creating a special needs trust.
  5. Contact your school about getting on the waiting lists for the Medicaid Waiver programs.
  6. Build a network friends with and without disabilities with your child. This will be important to create a home of friends and have a natural support system in the neighborhood.
  7. Complete this short survey on my website, Community for Permanent Support Housing, so you can stay informed of the housing options becoming available in North Texas.

Robin LeoGrande is co-founder and president Community for Permanent Supported Housing (CPSH), an all-volunteer, charity serving North Texas (Collin, Dallas, Denton, Ellis, Kaufman, Rockwall and Tarrant Counties).

Posted in Estate Planning, Financial Planning, Guardianship, Inheritance, Special Needs Issues, Special Needs Trust | Tagged , , , | Comments Off

Death Certificates

deathcertificate22Death certificates in Texas are generally prepared by the funeral home handling the deceased person’s body.  Often times the family will obtain the death certificates they need from the funeral home. The number of death certificates you will need will vary greatly depending on the amount and number of assets that the person had at the time of death. Most insurance companies, banks, & many creditors will request a death certificate. In Texas, you generally do not need a death certificate to open a probate case.

After a short time has passed, additional copies of the death certificate can only be obtained from the Texas Department of State Health Services.  These can be ordered by mail or online at https://www.dshs.texas.gov/vs/reqproc/deathcert.shtm.

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Estate Planning For Singles

If you are single and not financially responsible for anyone else, having an estate plan might not seem critical. Nonetheless, estate planning can ensure that your wishes are followed both before and after you pass. One element of an estate plan is a will or trust, through which you would specify who will inherit your assets. Perhaps more important for many single people are the financial and health care powers of attorney, which allow you to determine who will help you handle your finances and manage your medical care if you should need help with those tasks during your life. Whether you have never been married, have outlived your partner, or are divorced, having an estate plan in place can ensure that your wishes are honored when you are no longer able to voice those wishes yourself.

If you fail to leave proper documents that specify what to do with your assets at your death, this will be determined by state law. Most states would apportion the assets first to the decedent’s spouse, then to any children, and finally to the closest blood relatives. But you might have friends that you consider family. You might consider a sibling’s children like your own and want them to inherit your assets. You might have a long-term partner that functions Young manas a spouse. You might want your assets to go to a charity.

If you should become incapacitated and have not prepared a financial or medical power of attorney, the state would again make key decisions on your behalf. A court could appoint a distant relative or stranger to act as your agent, but you may have a partner, family member, or friend whom you would trust to make financial or medical decisions on your behalf. A financial power of attorney names the person who you desire be given legal authority to conduct your financial affairs, and a medical power of attorney does likewise for your health care matters.

Though estate planning is often associated with traditional families, single people also need a complete a will or trust and powers of attorney documents. Some easy planning now can ensure that your assets end up in the right hands and that decisions about your assets and health care are made by the people you trust the most.

Posted in Advance Directives, Estate Planning, Power of Attorney, Separate property, Trusts, Uncategorized, Wills | Tagged , , , , , | Comments Off

The Dark Side of Improper or No Planning

This is a reprint of a great article I posted in my blog back in 2012.

scream  One of my favorite columnists, Pamela Yip, has written another great article regarding the need for estate planning and how the lack of proper planning can cause your family severe financial and relational problems.  This column in the Personal Finance section of the Dallas Morning News is titled “Death, money and payback.” It is set out in its entirety below.

Challenges to wills fraught with emotion

By PAMELA YIP

Personal Finance Writer

pyip@dallasnews.com

Published: 06 April 2012 08:00 PM

Dave Plunkert/Special contributor

When it comes to dealing with an inheritance, make no mistake: It’s fertile ground for a family war.

Often, one child feels cheated out of his share and ends up challenging the will.

“You would be amazed at the number of calls we get on the topic and the frequency it arises in client discussions,” said Norm Lofgren, estate planning and tax lawyer at Looper Reed & McGraw PC in Dallas. “Death, money and payback do strange things to folks.”

Those seeking to challenge a will need to know upfront: It won’t be easy.

To begin with, “there’s really not much you can do until the person passes away,” said Jay Hartnett, partner at the Hartnett Law Firm in Dallas, which specializes in estate and trust litigation. “You can’t contest someone’s will until they’ve died, until it’s been offered for probate.”

Hartnett also said much depends on the circumstances involved in the challenge.

“If someone is 40 years [old] and is doing a will, it’s very difficult to contest the will,” he said. “But if you’ve had someone who’s had an estate plan their whole life and then in the last three months of their life, they suddenly change their estate plan completely and leave it all to one child and cut all the others out, that generally screams that there is some issue out there.”

Will challenges often occur in “second-family” situations, Lofgren said.

“Dad divorces, remarries younger woman, Dad dies and children from Dad’s first marriage are unhappy that the second wife receives more under Dad’s will than the children think appropriate,” he said.

“I can’t tell you how many times I have cautioned a couple in second-family scenarios that the second wife is not the mother of the children from the first marriage, and, when Dad dies, there is a potential for a will contest.”

Hartnett advises parents not to cut a child out of their will. “Anytime a parent decides to cut one of their children out, they can pretty much guarantee themselves that there’s going to be a will contest,” he said.

In Texas, there are several ways to contest a will:

Show that the person drawing up the will lacks “testamentary capacity.”

“Testamentary capacity simply means that the person executing the will knows that they are making a will, the effect of making the will, the general nature of their assets and their next of kin, and is able to make a reasonable judgment about these factors,” Hartnett said.

Estate planning attorney John Bauer of Shackelford Melton & McKinley in Dallas explains it this way:

“Mom’s got to know that she’s got a house and basically $100,000 in the savings account and she’s got a car and she’s got three kids. She has to understand those all at the same time. If she’s not mentally competent, then the will’s invalid.”

Show that the person drew up the will under “undue influence.”

That is, the individual signed a will “that they would not have signed but for the improper influence of another person,” Hartnett said.

Bauer’s example: “If the daughter is putting a lot of pressure on the parent and, because of that, Mom relents and she names the child [as sole beneficiary], that’s undue influence.”

But Bauer said the person making the challenge has to prove the undue influence. “She’s got to prove it by the preponderance of the evidence that that indeed happened. That’s a tough proof to make,” he said.

Show that technical details weren’t followed or that the will was forged.

“Was it done under the proper law?” Bauer said. “In other words, when you do a will, you have to do certain formalities. Was the will signed before two witnesses? You have to be 18 or older when you sign the will, and the witnesses have to be at least 14 years of age.”

The timing of a challenge also is critical. A will can be contested before or after it has gone through probate, Hartnett said, but you usually have only two years to file a challenge once one is probated.

“A person who thinks they may need to contest a will should contact an attorney as soon as possible after the loved one passes away,” Hartnett said.

Here’s another critical fact regarding timing of a challenge:

“Before the will is filed for probate, it’s up the executor of the will to prove that the person was of sound mind, above the age of 18 and the two witnesses were above 14,” Bauer said. “Once the will has been admitted to probate, then it’s up to the challenger to prove that the person was incompetent or someone wasn’t of the right age.

“If you think that Mom was incompetent, the time to do it is beforehand because they have to prove by the preponderance of the evidence that Mom was competent.”

A recent change in Texas law benefits heirs.

“In 2007, the Texas Probate Code was amended to provide that an executor of an estate had to notify the beneficiaries of a will that it had been admitted to probate and provide the beneficiaries with a copy of the will,” Lofgren said. “This was a good change to make sure that all of the beneficiaries were apprised of the probate and had a timely chance to oppose the probate.”

Challenges to wills sometimes come not from children, but from a distant relative of the parent, said Ellen Dorn, estate planning attorney at Fanning Harper Martinson Brandt & Kutchin PC in Dallas.

“What I’ve seen is that when a controversy about a charitable bequest arises, it is far more common for that concern or challenge to be raised by a distant relative and not by a child,” she said.

“What you see instead are great-nieces and -nephews — people who knew Aunt Suzie and Uncle Bob were well off, they were very loving, they were very hospitable, they had no kids, and of course they would name their nieces and their great-nieces and nephews in the will,” Dorn said. “They’re disappointed when they see that no, maybe a little token gift is given to the kids, but the bulk of the estate is going to charity.”

Will contests are emotionally charged, and you should think carefully before going ahead with one.

“The advice I would give someone contemplating a challenge is to ask themselves why do you want to challenge the will,” Lofgren said. “Does the will reflect what Dad or Mom wanted to do with their own stuff? Is the money sought really worth destroying your family?”

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