DO I NEED A WILL?
A Will is a really good idea if:
WHAT DOES A WILL DO?
A Will is a legal document that instructs others about how you would like your affairs to be handled after your death. In your Will, you can appoint someone, called a Personal Representative, to administer your estate. A Will allows you to list to whom you would like to give your assets. You can appoint a guardian for your minor children in your Will. Your Will can create a trust to hold your assets and distribute them over time in what ever manner you decide upon. Some Wills include wishes for burial, memorial services, or other matters. Port City Legal prepares simple Wills as well as complex Wills with multiple trusts and provisions. Most of our Will preparation is based on a flat fee. . Having Port City Legal prepare your Will also means that it will be easy to change your Will in the future if your circumstances change.
Please note that it is worth reading WHAT ARE PROBATE ASSETS AND WHY DOES IT MATTER? below.
WHAT IS A POWER OF ATTORNEY?
A Power of Attorney is a legal document by which you give someone else authority to act for you. This person is known as an agent. This authority can be broad or narrow. A Power of Attorney can limit your named agent to only doing certain tasks, can be limited by time, or can take effective only upon your incapacity. For estate planning, Port City Legal usually recommends a Durable Power of Attorney that is effective upon signing and gives your agent broad authority to act on your behalf in financial matters. The thinking behind this is that if you become incapacitated, it would be helpful to have something in place so that a trusted agent that take whatever actions are necessary to manage your affairs. Needless to say, an agent should be someone you trust and who is capable of managing your finances. We also recommend naming an alternate agent.
Please note that once a person passes away, that person’s Power of Attorney is no longer valid. A Personal Representative must be appointed by the probate court in order to have authority over a deceased person’s assets.
WHAT IS AN ADVANCE HEALTH CARE DIRECTIVE?
Also known as a Health Care Power of Attorney and Living Will, an Advance Health Care Directive is a legal document that spells out your wishes regarding your health care during any incapacity and at the end of your life. A primary function of an Advance Health Care Directive is to name an agent to make health care decisions for you if you are not able to do so. You can leave all decisions to your agent, or you can include preferences such as whether you want nutrition if you are in a vegetative state or wish to remain at home rather than be hospitalized at the end of your life. Advance Health Care Directives also can include your organ donation choices. Port City Legal recommends giving copies of your Advance Health Care Directive to your primary care physician as well as to your named agents so that your preferences are clear and easy to find if needed.
Please note that an Advance Health Care Directive is not a Do Not Resuscitate Order [DNR]. A DNR instructs medical providers not to attempt to revive you (i.e., perform CPR on you) if your heart stops or you stop breathing.
WHAT IS A LIVING WILL?
A Living Will is another name for an Advance Health Care Directive, which is described above. A Living Will is not a Will and is not the same thing as a Living Trust. Trusts are defined below.
WHAT IS A PERSONAL MEMORANDUM?
Maine probate law allows you to make a list, separate from your Will, to provide for whom you would like to give your personal property such as collectibles, jewelry, art, tools, furnishings, etc. Port City Legal Wills include instructions to your Personal Representative to follow any Personal Memorandum that you write. We also have templates for your use, although no certain form required. A Personal Memorandum needs to be in your handwriting or signed by you to be valid.
DO I NEED A TRUST?
Maybe not. Here are some circumstances for which Port City Legal recommend trusts:
I Want Control – If you want to set some limits or terms for the distribution of your assets, a trust allows you to do this.
I Want Privacy – Wills filed with probate are public documents, trusts are not.
I Want to Avoid Probate – In some circumstances, it can be less expensive to establish a trust and transfer your assets into the trust in order to avoid probate. Probate in Maine is relatively inexpensive and easy, so this is not as big a motivator in Maine as it is in other states with more expensive and cumbersome probate processes. Another factor to consider is that you will be paying for the trust and transferring assets into it now in order to avoid your estate’s having to pay for and undergo probate later. You won’t be around to see the benefit, or pay the bill.
I Have Real Estate that I Want to Stay in the Family – A trust can own family property and set forth the terms of its future use and management. At Port City Legal, we often recommend Limited Liability Companies instead of a trust for this purpose.
I’m in a Second Marriage and Want to Ensure My Children Get Assets – If you want to provide for your current spouse for their lifetime but thereafter have assets go to your children from a prior relationship, a trust can do this for you. You can set the terms of how and when funds go to your spouse and your kids.
I Have a Special Needs Beneficiary – Special Needs Trusts hold assets for the benefit of a special needs beneficiary while allowing the beneficiary to continue to receive any income or asset based governmental assistance. These trusts are very helpful in providing support to such beneficiaries past when you are able to provide help yourself..
I Want to Avoid Taxes – Estate taxes kick in at $5.45 million. If your assets are worth more than this, Port City Legal can help you avoid estate taxes by forming a tax shelter trust for your spouse.
. . . . .If none of the above apply to you, Port City Legal is happy to talk to you about trusts but chances are that you do not need one.
HOW CAN I PREVENT A RELATIVE FROM RECEIVING ANY OF MY ASSETS?
The best way to guarantee that someone does not receive your assets is to state this explicitly in your Will. You do not have to give a reason or leave them some token amount to have this take effective. Your Will can simply state “I intentionally omit my brother, Richard, from my Will.”
CAN IF PREVENT SOMEONE FROM CONTESTING MY WILL?
Not completely. We all have the right to file actions with the court. A No Contest Clause in a Will is helpful, however. A No Contest Clause states that any Will challenge will result in the challenger’s not receiving any inheritance at all, unless their claim is valid and they prevail in court. That last part is required by law and prevents scoundrels from rewriting Wills and then preventing challenges.
WHAT ARE PROBATE ASSETS AND WHY DOES IT MATTER?
Probate assets are controlled by the laws of probate, and so by your Will or the law of intestacy. Non-probate assets go automatically to the surviving joint owner(s) or named beneficiary/beneficiaries.
Probate Assets: assets owned solely by you.
Nonprobate Assets: assets owned jointly with others or that have beneficiary designations.
WHO SHOULD I NAME AS BENEFICIARY FOR MY RETIREMENT FUND?
It is easier to tell you who not to name: we generally recommend that you do not name your estate or a trust,unless the trust was specifically written for this purpose. People generally receive more tax benefits when they are named as retirement beneficiaries than estates or trusts. A surviving spouse is the most common beneficiary. Children are a good choice because they are younger and so can stretch out the tax benefits for a longer time. Charities also a good choice – and payouts to charities from IRAs are not subject to tax. Port City Legal recommends naming alternate beneficiaries as well, and reminds recently divorced clients to change their beneficiary designation from their former spouse unless they would like their ex to receive their retirement funds.
WHO SHOULD I NAME AS BENEFICIARY FOR MY LIFE INSURANCE POLICY?
Unless you are required to name a former spouse due to a divorce order, this question is wide open. Naming your estate is fine, in which case your Will would determine who receives these funds ultimately. The exception to this rule is if you have lots of debt, in which case you would not want this money going into your estate where creditors might have priority over your beneficiaries.
Port City Legal recommends naming alternate beneficiaries as well, and reminds those people who have divorced to change their beneficiary designation from their former spouse unless they would like their ex to receive their policy payout.
SHOULD I GIFT ASSETS TO MY CHILDREN WHILE I’LL STILL LIVING TO AVOID THE STATE GETTING THEM?
This is a tough question, and one we hear often. There a lot of consequences to giving assets away, especially your real estate. One of the biggest ones is loss of control. Once you are no longer the owner of your property, you have no ability to stop the sale of the property, its mortgage, its transfer to another person, its mismanagement, even its destruction. You also do no longer have the ability to sell or mortgage the property yourself, even if you find yourself in need of cash in the future. If you transfer the asset to your child and they are sued or have creditors or get divorced, they could lose the property. There also is the psychological impact of no longer owning your property to consider, especially if it is your home. If the gift is worth more than $14,000, you will need to file a gift tax return although no tax will be due, as explained below.
Gifting also has consequences if you foresee applying for MaineCare nursing home benefits. Upon application, MaineCare will look back five years to see if you transferred any assets. If you did, you will be ineligible for that value of benefits. If you contemplate needing MaineCare, we suggest meeting with Port City Legal before making gifts.
WHAT IS THE DEAL WITH GIFT TAX?
Gift tax is a federal tax imposed upon the givers of gifts. Recipients do not pay gift tax. Moreover, gift tax only kicks in when a person has given more than $5.45 million in gifts during their lifetime. Gift tax is not an issue for most people.
Certain gifts must be reported to the IRS. The reporting allows the IRS to monitor gifts so that, if you’re lucky enough to give away $5.45 million, the IRS can start taxing you. If you give any one person more than $14,000 a year, whether in cash, real estate, stocks, etc., you need to file a gift return with the IRS. You won’t pay any tax, but you have to report the gift. If you’re given real estate or personal property, you will need to include an appraisal of its value. If you’re giving gifts as a couple, you can give $28,000 ($14,000 per person) to each recipient without needing to file a gift tax return. Port City Legal is happy to discuss the benefits of gifting various assets and to file gift tax returns on your behalf.