The Montana Estate Lawyer

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.
Read more . . .

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.

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Thursday, July 11, 2019

State Taxation of Trusts

On June 21, 2019, the US Supreme Court ruled in North Carolina Department of Revenue v. Kaestner 1992 Family Trust that the presence of in-state beneficiaries alone does not permit a state to tax trust income that has not been distributed to the beneficiaries where the beneficiaries have (1) no right to demand the income and (2) no guarantee that they would eventually receive the income from the trust. 

In 1992, Joseph Lee Rice III created a trust for the benefit of his children. The trust was to be governed by New York law (Rice’s home state), with the initial trustee residing in New York and the trust custodians residing in Massachusetts. The original trust provided that the trustee would have “absolute discretion” to distribute the assets to the beneficiaries “in such amounts and proportions” as the trustee might “from time to time” decide.
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Thursday, June 27, 2019

Are you prepared if disaster strikes?

The most common response I hear when I ask if a person has finished  his or her estate planning is, “I’m not worried, I have plenty of time.”  People view estate planning as simply directing how their stuff is distributed.  Estate planning, however, is more involved than that.  Proper estate planning should address both what happens while you are alive and what happens after your death.  First, you should ensure you have named people you trust to make decisions on your behalf while you are still alive and that your affairs are organized enough that they are able to do so.

Read more . . .

Thursday, June 13, 2019

Your Estate Plan – It’s Not Just About Your Assets, It’s About Your Legacy

What’s most important to pass on to the next generation? A recent survey by Age Wave Consulting asked Americans aged 45 years and older this question.  The results may surprise you in that the number one ranked answer was not “financial assets or real estate.”  The number one ranked answer was actually “values and life lessons” from 74% of the respondents.  The lowest ranked answer was "financial assets or real estate," while ranked in between were “instructions and wishes to be fulfilled” and “personal possessions of an emotional value.”

Traditionally, legacy planning has focused on the legal documents and financial techniques needed to transfer tangible assets.
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Thursday, May 30, 2019

Hospital Ordered to Pay $400,000 in Do-Not-Resuscitate Lawsuit

I saw the following article in the Great Falls Tribune this past weekend, as report by the Associated Press. The article, in its entirety, states:

“A Montana hospital has been ordered to pay more than $400,000 in damages to the estate of a man after jurors found the hospital, on two consecutive days, violated the man’s wishes not to be resuscitated.

A jury on Thursday found St. Peter’s Health in Helena and Dr. Virginia Lee Harrison negligent for violating Rodney Knoepfle’s patient rights.

Read more . . .

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