The Montana Estate Lawyer

Friday, August 10, 2018

The Importance of Estate Planning

It is estimated that a majority of Americans, perhaps over 60%, die without an estate plan. The importance of having and updating an estate plan cannot be overstated.

So why is it that most of us have not done even the basic estate planning that is so important to our families? Death is not something we want to think or talk about. Thus, we procrastinate and put off dealing with these types of decisions. For most people, things like planning a vacation or family activities is a lot more fun than planning for death or the possibility of becoming incapacitated and unable to make decisions.
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Friday, August 3, 2018

Think Twice About Adding Your Children to Your Bank Account or Other Assets

I see it often in our practice.  When people hear about the cost, delays and potential perils of the probate process, they often just add their children as co-owners on their bank accounts or their residence in order to avoid probate.  However, this should be done, if at all, only after careful consideration of the potential perils of joint ownership and the alternatives available to avoid probate.

I know, most people’s first thought in response to this is, “Why?  My children are good kids, they’d never steal from me.”  That’s probably true and I’m not trying to convince you otherwise.
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Friday, July 27, 2018

The Veterans Asset Protection Trust

The Veterans Asset Protection Trust can be an applicable and beneficial option for many of our elderly clients who are looking for long-term planning options. The Veterans Asset Protection Trust is an intentionally defective grantor trust and can be considered as an option for clients who are wartime Veterans or the surviving spouses of a wartime Veteran. This trust is designed to meet the eligibility requirements from the Veterans Administration (VA) of a complete gift or complete relinquishment. 

When it comes to assets, the most significant for a Veteran is often his or her residence. As long as a Veteran retains that home, it does not count as part of his or her net worth for VA-eligibility purposes and instead qualifies as a “non-countable resource.
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Friday, July 20, 2018

A New Tax Identification Number is Required for Revocable Living Trust After the Trustmaker's Death

Many of our clients choose to create revocable living trusts as their primary estate planning vehicle to state their wishes for the management of their assets during life and what will happen to the assets after their death. Creating a revocable living trust establishes a separate legal entity that owns the property that is funded into the trust. In general, trusts are subject to taxation as separate entities and as a result they need to have their own identification number for tax purposes. However, for a revocable living trust a separate tax identification number typically is not necessary during the grantor's ("trustmaker's") lifetime. Revocable living trusts are treated as what the IRS calls "grantor" trusts, which allows them to use the Social Security number of the creator or grantor of the trust.
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Friday, July 13, 2018

What Is a Living Will?

A living will is a document that allows you to say what should happen if death is imminent and there’s nothing more medically that can reasonably be done.  If you are in a hospital and your doctor determines that you are terminally ill with only a short period of time to live, you can clarify that you do want to have administered that serve only to prolong the dying process. 

It allows you to express your wishes in advance at a time when your life is not yet threatened and you're thinking clearly.  It comes into play when, an only when, you can't voice your own wishes and covers only one stage of your life, when you're near death. For your declaration to take effect, your attending physician must determine that there can be no recovery from your terminal or vegetative condition and your death is imminent or you can no longer experience a meaningful life.
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Friday, July 6, 2018

Defining Your Goals

Here is a great discussion about defining your goals when putting together your estate plan, as set forth in Keith’s book, “Introduction to Estate Planning – How to Protect and Pass on Your Legacy,” Bardolf & Company, 2017.

Your Job is to Share your Concerns

Good planning starts with identifying goals. Your goals! Not other people's goals or what someone thinks your goals should be.

Rather than rushing into a discussion about saving taxes or what to do about the family cabin, we want to take the time to figure out what you want to achieve. I find that many clients have never had the opportunity to really think about their goals.
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Friday, June 29, 2018

What a Will Does Not Do

A simple Will) is a bares bones simple estate planning tool that contains not much more than your wishes concerning transfers of property at your death.  A simple Will cannot and is not meant to do everything for you.

The following are some estate planning goals or priorities that go beyond the limitations of a simple Will:

  • Avoiding probate: With exceptions where the deceased owns no real estate solely in his or her name at death and solely owns only personal property with a cumulative value of less than $50,000, Wills must go through the probate process. Most of the time, a well-written and thought out Will, shared with family before death, should be able to pass through probate relatively quickly, but complications may occur in some circumstances. So, if your goal is to pass on property to loved ones and avoid probate, a revocable living trust is often a good option.
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Friday, June 22, 2018

Estate Planning Tips for Families with Disabled Beneficiaries

I recently came across an article on that does a good job of setting forth planning tips for families who have a loved one with a disability.
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Friday, June 15, 2018

Discussing End-of-Life Arrangements With Your Loved Ones

Understandably, most of us do not want to address the subject of death with our families. It is an uncomfortable, scary, and emotionally charged conversation, and it is normal to feel intimidated by it. This is, however, not a reason to avoid the discussion. Even if you are lucky enough to have a healthy family, it is never too early to talk about end-of-life arrangements with the people close to you. These conversations will never be easy, but they can be quick and painless if you approach them properly.

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Friday, June 8, 2018

Montana has adopted the Revised Uniform Fiduciary Access to Digital Assets Act

In today's world, the nature of holding our property and our methods of communication have changed dramatically. A generation ago, we delivered all of our mail by post, photos were kept in albums, documents in file cabinets, and money on deposit at the local bank. For most of us today, at least some of our property and communications are stored as data on a computer server and accessed via the internet.

Collectively, a person’s digital property and electronic communications are referred to as "digital assets" and the computers that store those assets on their servers are called "custodians." Access to digital assets is usually governed by a terms-of-service agreement rather than buy property law.

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Thursday, May 31, 2018

Questions & Answers When Looking for an Elder Law and Special Needs Planning Attorney

May is national elder law month.  Below is an excerpt from a guide published by the National Academy of Elder Law Attorneys (NAELA), of which I have been a member since 2003.

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