The Montana Estate Lawyer

Thursday, March 26, 2020

CORONAVIRUS / COVID 19: Essential Estate Planning Considerations for Yourself and Loved Ones

With the threat and uncertainty of COVID-19, many people may be thinking about what they should be doing to prepare for and handle their personal estate planning needs or those of an elderly family member. Here is a checklist of estate planning essentials.

Healthcare or medical power of attorney.  This document allows you to designate a person or persons to assist you with your personal affairs and medical care.  It allows for a family member or close friend to make decisions on your behalf about medical treatment options if you lose the ability to decide for yourself.
Read more . . .

Thursday, February 13, 2020

If A Decedent Dies Without A Will, How Are The Assets Distributed?

Each state has statutes called “Intestacy” statutes that are referred to when an individual dies without a Will. These statutes dictate intestate succession, which is how “probate” property is to be distributed to the decedent’s heirs. 

What is probate property, or, stated another way, when is a probate necessary? Generally speaking, probate is necessary when a person dies leaving property in his or her own name (such as a house titled in the name of the decedent) or having rights to receive property (such as a wrongful death claim or debt owed to a decedent). However, not all property in which the decedent has an interest will be subject to probate. There are certain kinds of property which pass to a new owner on death without going through probate, such as:

• Property which is owned by the decedent and another person as joint tenants with right of survivorship will pass automatically to the surviving joint owner without going through probate.
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Thursday, January 16, 2020

The SECURE Act and Your Estate Plan

On December 20, 2019, President Trump signed the Setting Every Community Up for Retirement Enhancement Act (SECURE Act). The Act became effective on January 1, 2020 and impacts retirement accounts. Among other things, the Act increases the start date for required minimum distributions (RMDs) from 70 ½ years of age to 72 years of age, eliminates the contribution age limit for qualified accounts, and allows penalty-free withdrawals of $5,000 for the birth or adoption of a new child. One of the more  significant and key provisions of the Act changes the way designated beneficiaries receive the funds after the account owner has died. 

In the past, designated beneficiaries had the opportunity to “stretch the account” – taking distributions over their individual life expectancy.
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Thursday, December 26, 2019

New Year's Resolutions

(I originally posted this almost ten years ago, but it still holds true today.)

We all make New Year’s resolutions.  Losing weight, exercising, learning a new language . . .
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Thursday, November 21, 2019

Myth: A Will Avoids Probate

Many people believe that once they have created a Will--whether drafted by an experienced attorney or using a do-it-yourself solution or online form--they have avoided probate. Unfortunately, they are wrong.

A Will is a way to designate a person to wind up your affairs once you have died, determine who will get your hard-earned savings and property, and, if necessary, appoint a guardian to care for your minor children. However, it is not self-effectuating. The Will has to be submitted to the probate court to formally determine its validity, appoint the person you have designated, called a Personal Representative, and begin the process of distributing your money and property.
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Thursday, October 24, 2019

Estate Planning Awareness Week: The Importance to You and Your Family of Having an Estate Plan

In 2008, Congress recognized the need for the public to understand the importance and benefits of estate planning by passing House Resolution 1499, which designated the third week of October as National Estate Planning Awareness Week. Nevertheless, according to a 2019 survey carried out by, 57% of adults in the United States have not prepared any estate planning documents such as a will or trust despite the fact that 76% viewed them as important. Many of the respondents said this was due to procrastination, but many others mistakenly believed that it was not necessary because they did not have many assets.

Why should you have an estate plan?

An estate plan can provide significant peace of mind by ensuring your assets are protected, plans are in place in the event you become ill, and your property is passed down according to your wishes.
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Thursday, October 10, 2019

Why Living Trust Plans Don't Work

Many people think of estate planning as a one-time event. They may put a significant amount of time, money and effort into creating a great living trust-based plan, but then they file it away and forget about it. What is going to happen to these plans?  They won’t work when these people and their family need them to.

The most common reason trust-based plans don’t work is that the trust doesn’t own all of the assets.  So, even though a properly funded trust will allow the family to avoid probate, that won’t happen for these people.

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Thursday, September 12, 2019

529 Plans and Their Advantages

A 529 plan, otherwise known as a qualified tuition plan, is a tax-sheltered way of saving for education. 529 plans are sponsored by states, state agencies, or educational institutions, and offer several estate planning benefits.

Distributions from the 529 plan, if used for the beneficiary’s qualified education expenses, including tuition, fees, books, supplies, equipment, and a limited amount of room and board, for students at colleges, junior colleges, technical schools, and even, with limitations, primary and secondary schools, are income tax-free.

Even though you can change beneficiaries or get your money back, 529 plan contributions are considered “completed gifts” for federal gift tax purposes.  As such, they are eligible for gift tax annual exclusion, currently $15,000 per year per person, $30,000 for married couples, for any number of recipients.
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Thursday, August 22, 2019

Your Estate Plan - Follow George Washington's Example

We talk often about the importance of a well-thought out estate plan.  Such planning includes giving thought to and identifying your goals and concerns, addressing those goals in a manner that makes most sense to you and fits your needs, and communicating your plan to family. With that in mind, I read with great interest a recent article that the “father of our country,” George Washington, did exactly that when formulating his last will and testament in 1799.  See Chris Creed, Smart Tips for Estate Planning: Write Your Will Like George Washington Did, Kiplinger, August 9, 2019. Whether it’s a will-based plan or a trust-based plan, we can all benefit from following his example.
Read more . . .

Thursday, August 8, 2019

The Grantor Trust - It's an Income Tax Concept

Many kinds of trusts are used in estate planning.  Trusts can be revocable or irrevocable, and their primary purpose may be to provide for such things as a means for planning for incapacity or disability, minimizing or eliminating estate tax, promoting a charitable purpose, or even avoiding probate, to name a few.  They can be set up for the use and benefit of the creator of the trust or for other individuals. The creator of a trust is known as the grantor.  The person or a member of the class of people for whom the trust assets  are intended to benefit is known as the beneficiary (which could be or include the grantor), and the person or entity that manages the trust is the trustee.
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Thursday, July 25, 2019

Who Should Handle Your Affairs?

Have you taken the time to consider whom you want to name to help if you become incapacitated or pass away? Keith's Book, "Introduction to Estate Planning - How to Protect and Pass on Your Legacy," Bardolf & Company, 2017, provides some great insight:

Healthcare Agents

Healthcare decisions are often time-sensitive. So, you may name a partner or spouse as primary decision-maker and then someone who lives nearby as a backup. People often want to name their kids as backups, which may be fine unless they live across the country.

You may decide that there are several people who could serve as backup healthcare decision-makers and that you'd be comfortable with any of them acting alone. If so, you might designate, say, all three of your kids "individually or jointly," meaning that if only one can make it to the hospital in time to help, he can act alone.

Read more . . .

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