Nashville Estate Planning Law

Comforting the bereaved.

The work of the estate planning and probate attorney involves helping people plan for death, disability and loss. It also inevitably involves helping them cope with a loss that has already occurred.  In my personal and professional life, I want to offer comforting words to the recently bereaved, whether they are friends, family or clients.  Our culture is not comfortable with open expressions of grief, and we all struggle with how best to comfort those who are grieving the loss of someone close. 

I just read a very good blog posting on this topic that included some good practical suggestions.  Rather than trying to summarize it, I direct you to Brian French’s posting at http://www.estatesettlement.com//ftf_grief_howtohelp.php

Probate avoidance- Is it necessary in Tennessee?

In some states, probate is expensive and burdensome.  In my experience, that is not true in middle Tennessee.   In those state with lengthy and expensive probate processes, attorneys often advocate using revocable trusts to avoid probate.  This requires having a revocable trust document prepared and then  transferring all of your assets into the trust during life. This is usually more expensive and time consuming that having a Will prepared.   

The reasons you may want to avoid probate by using a revocable trust are the following:

- Privacy.  A Will that is filed in Probate Court, becomes a matter of public record.  Any member of the public could go to Probate Court and ask to see it.  A revocable trust is not filed in Probate Court and is not likely to become part of the public record unless a law suit develops regarding the document. 

- Disability planning.  Creating and funding a revocable trust is one way to plan for disability. You can transfer all your assets to a revocable trust, designate a successor trustee and direct how you want the trust assets to be used for your benefit in the event that you become disabled.

- Professional asset management.  If you lack the knowledge or interest in managing your  investment assets yourself, you may want to transfer everything to a revocable trust and name a professional asset manager to manage your investments or real property and make distributions for your benefit.

- Real property outside your home state. If you own a vacation home in another state, you may want to transfer the vacation home to a revocable trust to avoid the necessity of having 2 probate proceedings- one in your home state and one in the state where the vacation home is located.

The cost of probate is different in different states.   In some states, executor fees and attorney fees are a percentage of the value of the estate by law.  This is not true in Tennessee.  Typically attorney fees are charged according to the attorney’s hourly rate and the amount of time worked, not according to the value of the estate.  Executor fees may depend on the language of the document or an agreement that can be reached between the executor and the beneficiaries.  In some counties, the Probate Court judge must approve the executor and attorney fees.

Probate Court fees in Tennessee are nominal (around $300) for an estate that goes through probate smoothly.  If the estate becomes embroiled in litigation, attorney fees and court fees can be substantial and the time it takes to resolve the dispute and distribute all the property will be substantially more than in a smooth estate administration.

Revocable trusts and the avoidance of probate makes sense in some situations but not all. Make sure it makes sense for your situation before choosing that option.

Estate planning for parents of minor children

Estate planning is not just for the wealthy, and it is not just for the elderly.  Parents of young children need to plan for the care  of their children if both parents should pass away while the children are still minors.  

1-      Planning for the financial care of your minor children.

Without a Will: If a parent dies without a Will, state law provides for a portion of the parent’s property to pass to their surviving children at the parent’s death.   If property is inherited outright by minor children, a judge would appoint a responsible person, the Guardian of the estate, to care for the inherited property.   A court-supervised guardianship can be expensive and burdensome and requires annual reports to the court of all expenditures.  Another downside: the assets in the guardianship become the property of the minor when the child reaches age 18.

With a Will:    The parent can set up a trust under their Will and name the trustee to manage the assets and distribute it for the minor’s benefit.  They can provide for assets to remain in trust until the child reaches an age where he or she has the maturity to manage it responsibly.

2-      Designating  who will raise your minor children until they are adults.

Without a Will:  A Judge will appoint a Guardian of the person to raise the children.  The Judge will appoint someone the Judge decides is  appropriate.

With a Will:  Parents can nominate the person they would trust to raise their children by naming “Guardians of the person” in their Wills.  Their choice must be approved by a Judge, but the parent’s choice carries great weight.  This is the person who will raise the children if both parents pass away while the children are minors. 

3-      Designating who will care for your children if you are living but unavailable.

Without this designation:  There can be uncertainty, delay and possible involvement of governmental authorities concerning who can make decisions for your child’s care in your absence.

With this designation:    A document called a “durable power of attorney for care of a minor child” is a written designation of authority to a responsible adult who you have chosen to provide temporary care for your  minor children while you are out of town or unavailable for other reasons.  This document could be needed when your minor children require medical care when you are unavailable.

If you are the parent of a minor child, don’t delay in having this important work done.

Advance Health Care Directives

As part of an estate planning package, most attorneys prepare advance health care directives or Living Wills along with a Last Will and Testament or Revocable Trust.  An advance directive is a document in which you give directions for your health care at some time in the future when you may be unable to make health care decisions or speak for yourself.

In Tennessee, the two most commonly used advance health care directives are the Living Will and the Advance Care Plan.  Both documents are valid under state law.  The Tennessee Living Will was developed in 1985.  The Tennessee Advance Care Plan was developed in 2004.  The Advance Care Plan can be found on the Tennessee Health Department website at http://health.state.tn.us/AdvanceDirectives/Advance_Care_Plan.pdf. 

There are differences between the two documents. The Living Will addresses the circumstance where the signer, called the “declarant,” is terminally ill, with no hope of recovery, and is unable to speak for themselves.  In the Living Will, the declarant expresses his or her wishes about whether artificially-provided food and fluids (such as a feeding tube and intravenous fluids) can be withheld or withdrawn if the person is in a terminal condition. 

In contrast, the Advance Care Plan gives the declarant a way to state their wishes about a wider range of possible physical conditions and a wider array of possible treatments.  In the Advance Care Plan, the declarant can indicate their wishes regarding cardio-pulmonary resuscitation, maintenance on life support such as ventilators, or treatment for new conditions, as well as the administration of artificially provided food and fluids.  The declarant can indicate if there are other conditions (including being permanently unconscious, permanently confused or permanently dependent in all activities of daily living) that they may find to be unacceptable.

Whether you choose to sign the Living Will or the Advance Care Plan, think it through carefully and once you have signed it, talk to your family and friends , especially those who will be making the health care decisions for you.  Let your doctor know and make a copy of the form for your doctor’s file.  You can always revoke the directive if you change your mind later.

It’s all in the details – property  titles and beneficiary designations.

As part of the estate planning process, I ask clients for a list of their assets and how those assets are titled.  The title to assets can determine who gets the property when the owner dies.  Property that is owned by two or more people  with rights of survivorship or by husband and wife will pass automatically at the death of one owner  to the surviving owner.  When real property is held by two or more people as tenants in common, each is considered to own a separate share of the property and to be able to dispose of that share in his or her Will.

As an example of why this is important, consider the following.  A husband and wife were sure that they owned their home jointly.  However, after the husband’s death, it was discovered that the deed to the property stated their names but failed to describe them as husband and wife. As a result, they owned the property as tenants in common without rights of survivorship.  This meant that the property did not automatically pass to the wife at the husband’s death.  Instead  the Will had to be probated to show that the husband’s share of the property passed to the wife under his Will.

Beneficiary designations on life insurance and retirement plans should be checked as part of the estate planning process also.  As an example of why, consider the following.   A man named his wife as beneficiary of a group life insurance policy that he had through work.   His wife died, and he never changed the beneficiary designation on the policy.  Decades later, after a second marriage, the husband died, and the family discovered the life insurance policy that still named the first wife as beneficiary.  The insurance company decided that the second wife was entitled to take the policy proceeds, much to the dismay of the children from the first marriage.

Property titles and beneficiary designations are an important part of an estate plan.  Make sure they are current and coordinated with your planning documents. 

Q: Is it good to hold my assets in joint accounts with rights of survivorship?

A:  If you want the joint owner to have the property after your death without going through probate, a joint account will accomplish that.  However, joint ownership can complicate matters in the estate planning context in ways that you may not have considered.

1. You can unwittingly undermine an “equal shares” estate plan. If you have planned for your estate to go equally to your children or other beneficiaries under your Will, the jointly owned property or account will have the effect of delivering a share of your estate to the joint owner. This may make the “equal shares” unequal and your other beneficiaries unhappy.
2. You can unknowingly make a gift that incurs gift tax.  For example, if you add a child’s name to a real property deed as a joint owner with rights of survivorship, you have just made a gift to that joint owner.  The value of the real property determines the value of the gift.  If the value of the gift exceeds $13,000 (the annual gift tax exclusion amount for an individual in 2010), you should file a Tennessee gift tax return and a federal gift tax return. Sometimes gifts are not discovered until after a joint owner passes away.  By that time, there may also be penalties and interest owed in addition to the gift tax.
3. You can unknowingly render your estate planning documents worthless.  The property that passes under a Will is the property that is titled in the name of the deceased person alone and that comes to the estate by a beneficiary designation.  Planning to minimize estate and inheritance tax often involves the use of trusts created after death with the property passing under the Will.  If the deceased person owned all his property jointly with his surviving spouse, the trusts created  under the Will cannot be funded and the couple will not get the benefit of the tax planning in the Wills. 
4. Joint ownership may not be what you intend.  Sometimes an older person wants to add a child or friend to a bank account so that person can help them pay bills.  The best way to do this is by making that person an “authorized signer” on the account and not a joint owner of the account. Often this distinction is not clearly understood or communicated to bank personnel and an account that should have had an authorized signer added, becomes a joint account instead.  This can lead to problems later on when the older person dies and a person who was never intended as a beneficiary becomes the owner of the joint account.

Joint accounts can be a convenient way to own property.  Just make sure you understand all the consequences of this form of ownership in the estate planning context.

The newspapers are full of stories about family fights over an inheritance.  Grief and loss can bring out the best and the worst in the survivors.  If you want to make sure your family is not torn apart by a fight over your estate, here are a few tips to incorporate into your estate planning:

1. Hire a lawyer who knows estate planning law.  Your neighbor who handles divorces or your cousin who is a corporate lawyer are not good choices.  Hire a lawyer whose practice is devoted to preparing Wills and administering estates.  You may pay a little more than if you have a friend or relative prepare the Will, but it will be well worth it.
2. Be smart in choosing the executor and trustee.  If hostilities may erupt among your children, do not appoint one of those individuals to be in a position of authority over the estate.  Consider hiring a professional corporate fiduciary, a bank or trust company, to serve as executor if you think a family feud may break out after your death.
3. Tell your family what you are planning.  No one likes to be surprised at the terms of a Will. Sit everyone down for a family conference and let them know what you have planned and why. It can defuse a potential fight if you make clear upfront what your wishes are.  This will keep family members from having expectations that will be disappointed and keep them from claiming later that a certain disposition was not what you intended.
4. If you have moved, make sure your Will takes into account the laws and probate system of your state of residence.   Make sure your Will is up to date and not a relic from the past that reflects your life 25 years earlier.

More tips to come in next posting.

Wake–up call

Last week, in the wee hours of Wednesday morning, I rushed my husband to the emergency room with chest pain. It was a heart attack.  He was treated promptly and successfully and is now home recovering. 

In the emergency room, they asked if he had a power of attorney for health care or Living Will. The unsigned forms were in my computer.  I had prepared the documents months ago, but was always too busy with other people’s work to print them out for him to sign. Fortunately, my husband was conscious and able to consent to treatment himself.

The saying “the cobbler’s children have no shoes” comes to mind.  In this case, the estate planning attorney has not been following the advice she gives to others.  Our Wills and POAs are old and out of date.  Preparing new documents for us has just moved to the top of my priority list.

My husband’s medical crisis was like sharp poke in the ribs for me. We never know when those documents will be needed.  Get it done now while you can.  A medical emergency can happen any time.  Be prepared.

What is a disclaimer?

            A disclaimer is a refusal to accept property that one would otherwise receive by gift or inheritance.  These days the disclaimer is receiving much more attention from estate planners for its usefulness in adjusting estate plans after death when needed.

            Disclaimers are a way of changing the distribution from a Will if there is a tax benefit or other reason to do so.  For example, Grandpa leaves his estate to his Daughter who is already wealthy.  Daughter disclaims the inheritance and allows it to go instead to her children who need the money to pay college tuitions for their children. 

            In order to disclaim property, the person disclaiming must satisfy several requirements.  There must be a written document describing the property to be refused and signed by the person disclaiming.  The written document must be delivered to the Executor and filed in the Probate Court within 9 months of the date of death. The person disclaiming must not have received any benefits from the property they are disclaiming.  In order to preserve the right to disclaim, the person entitled to an inheritance should consult with an estate attorney before doing anything with the estate assets.  The estate attorney will help determine whether the disclaimer is needed, and if it is needed, will prepare the written document and make sure that all the legal requirements are met.

            Disclaimers are useful in this time of uncertainty about the federal estate tax.  The disclaimer can be used to correct planning that relied on tax credits and exemptions that do not exist in 2010.  The disclaimer can be built-in to documents designed now as a way of giving flexibility and allowing for future adjustments to be made to obtain the most beneficial outcomes.