​Having a Will Alone Simply Does Not Ensure the Care of Your Kids If the Unthinkable Happens to You!

If you are a parent of minor children who are counting on you, your estate plan must begin with ensuring your children would always be taken care of by the people you want, in the way you want, no matter what happens.

One of our areas of greatest expertise is in planning for the well-being and care of the children you love – all the way from newborn to age of majority, and all the way through adulthood if your child has a special need.

Without Proper Planning, Here's What Could Happen

• ​Your children could be placed into the care of strangers while the authorities figure out what to do (yes, even if you have a will in place and even if you have a living trust). It’s true that this would likely only be temporary, but trust us: you never want your children in the arms of strangers, not even for a minute.
• ​Your children could be put into the custody and care of someone you would never want, like that one family member who has good intentions but who you would never want raising your kids.
• ​A judge who doesn’t know you or your family will decide who will raise your kids, even if it is the last person you would ever want.
• ​Your family could get into a long drawn-out custody fight or there could be a challenge to the guardians you have designated.
• ​Up to 5% of the value of your assets could be lost to court costs and other unnecessary fees through the probate process, a court process that can tie up your assets for years and deprive your kids of the resources they need to live comfortably.
• ​When your kids turn age 18, they get a check for whatever assets are left, no matter how immature they might be or what financial lessons they have not had a chance to learn yet.
• ​Unscrupulous people out there find out when 18-year olds are getting that inheritance check by searching the public court records.
• ​Unfortunately, the vast majority of estate planning attorneys do not address these issues and do not plan from a parent's perspective.

Yes, these things scare us too.

That’s why we offer a Kids Protection Plan® with every estate plan we do for families with young children.

Do You Really Know?

Do you know beyond a shadow of a doubt what would happen legally and financially to you, your loved ones, your money and everything else you care about if something unexpected happened to you?

If you have an estate plan and it is out of date, your assets could be lost to the state department of unclaimed property or to an unnecessary and public court process.

If you do not have an estate plan, then the state has a plan for you, and it's probably not what you want.

Here’s the bottom line: If you do not know exactly what would happen to everyone you love and everything you own, then the first step is to find out exactly what would happen legally and financially, so that you can decide if the current state of your affairs is okay with you.

How Do We Help You With Estate Planning?

We meet together for your Family Wealth Planning Session where the sole purpose is to get you more informed.

Before your Family Wealth Planning Session, you will complete your Family Wealth Inventory & Assessment, which will help you to get clear about what you own and what you have to think about when it comes to planning for the well-being and care of your loved ones and your belongings.

If you decide the current state of affairs is unacceptable, and if we both decide that it is a fit to work together, then we will design an estate plan together that will best suit the needs of your family.

The foundation of your estate plan will often include a revocable living trust, which, when done correctly and maintained over time, should help your family avoid the cost and delay of the public probate process and minimize or eliminate estate taxes.

For people with additional needs, we provide advanced estate planning services.

​“Can I DIY My Estate Plan?”

We get this question all the time.

Unfortunately, most DIY plans do not work because much of what passes for estate “planning” is little more than word processing.

You answer a few automated questions and then the drafter (normally just software, not a human being) decides which “plan” is right for you. And then you are forced into a template document that may not reflect your needs or situation whatsoever.

We Are Professional Estate Planners

At Boone Legal , we will educate you and take the time to get to know you, your family, your concerns, your goals and your issues.

We will gladly and patiently answer all your questions to design an estate plan that is exactly right for you and will keep your loved ones out of court and out of conflict.

​How To Leave Assets For Your Special Needs Child

Estate planning for a family with special needs children comes with a complex set of financial, social, and medical issues that some lawyers are ill-equipped to handle.

At Boone Legal we are dedicated to ensuring your child with special needs will be well taken care of when you are no longer able to serve as their primary caregiver.

We offer a variety of estate planning tools and strategies designed to accommodate the unique circumstances presented by children with special needs and their families.

We can help you pass on the financial assets needed for your child to live a rich quality of life without jeopardizing their eligibility for government benefits. We will also assist you in finding and appointing a trusted guardian and/or trustee to look after them in the event of your death or incapacity. 

Special Needs Trusts

One “Catch-22” situation that typically arises in estate planning for those with special needs is how to leave enough money to pay for the massive amount of care and support a special needs loved one typically needs throughout their lifetime, while not disqualifying them from government benefits like Medicaid and Supplemental Social Security Income.

If you leave a large lump sum of money directly to a special needs child, immediately there are concerns about how that might impact governmental assistance and whether your child is capable of managing finances on their own.

Fortunately, we have an estate planning tool called a “special needs trust” designed to provide supplemental financial resources for the physically, mentally, or developmentally disabled child without affecting their eligibility for public healthcare and income assistance benefits.

This said, the rules for such trusts are quite complicated.

For instance, funds from a special needs trust cannot be distributed directly to the disabled beneficiary and must be disbursed to a third party who is responsible for providing the goods and services your special needs child will need to maintain a comfortable lifestyle.

Even once you have established a special needs trust, the care and attention we pay to your special needs child is not over. We know that your child’s financial and emotional requirements will change over time, sometimes dramatically. And the laws governing public benefits change over time.

Given this, it is vital to work with an experienced special needs attorney who can create a comprehensive special needs trust that is both properly structured and appropriate for your child’s specific situation.

Special Needs Planning ​And Trusts​

If you need estate planning for your child with Down Syndrome, autism, cerebral palsy, or any other developmental or intellectual disability, we are here to help you.

We will help you develop a sustainable living plan for your child with special needs that will provide them with the finances they need to live a full life, while preserving their access to government benefits.

​Nobody Expects To Be Sued

Just ask the 20 million people involved in lawsuits last year.

Divorce, inheritance, health issues, creditors, employee disputes, theft, changing markets, malpractice suits, sexual harassment claims, natural disasters and disgruntled business partners – these are just a few issues that can result in devastating lawsuits for unprepared business owners.

The highest level of risk falls on those who think they are immune.

Americans are now more concerned than ever about protecting their assets from creditor claims, taxes, divorce and other disasters. And rightly so.

The more success you have, especially in business, professional practice or real estate activities, the more at risk you are as others see your success grow.

Risky Business

Here are some of the risky behaviors you may be engaging in right now without even realizing it:

• ​Will you be signing loan documents, a personal guaranty or a lease in the near future?
• ​Do you have rental properties or employees?
• ​Are you an attorney or physician?
• ​Do you work in construction or perform professional services?
• ​Are you getting married soon?
• ​Are you or will you be getting married and you have children from a prior marriage or separate property assets?

Here’s the thing: All of these activities are activities we want to see you do more of!

But we do not want you to create a negative impact on your life or your future.

How You Can Take Maximum Risk With Minimum Worry

This is where we come in. We set up your estate planning in proper ways to ensure that you can take maximum risk with minimum worry.

We assist our clients in determining the appropriate level of asset protection planning for their particular circumstances. We will consider insurance, prenuptial agreements, asset segregation, choice of jurisdiction, gifting, LLCs, partnerships, corporations, and asset protection trusts.

There are many different strategies to accomplish the protection of your assets both while you are alive and for your family after you are gone.

To find out which strategies may be right for you, schedule your Family Wealth Planning Session and we will talk about it one-on-one.

Uncle Sam’s Cut

You work your entire life to save and have enough money to comfortably retire – and ideally leave something for your loved ones when you pass away.

During your life you pay all kinds of taxes: income taxes, property taxes, sales taxes, and so on. And at the end, the government still wants to tax you on the assets you have left at your death.

This is known as the estate tax, sometimes called the “inheritance tax” or “death tax.”

The best way to protect your assets and your family’s future from excessive taxation is to hire an attorney who specializes in estate tax planning. We can help you reduce – if not entirely avoid – the federal estate tax burden.

How Does the Estate Tax Work?

Estate tax is totally separate from federal income tax, property tax, sales tax, and every other type of tax you’ve paid during your lifetime.

Estate tax is a tax paid on the net value of all your assets owned at your death.

However, there are fairly sizable exemptions to the estate tax so it is primarily a high net-worth individual or family who is affected.

This said, the estate tax rate is a whopping 40% on your net estate, so if you do have an estate tax problem, we are talking about potentially massive sums of money your estate will owe to the government before a single heir would enjoy a single penny.

​Is The Estate Tax Really Your Problem?

President Trump’s Tax Cuts and Jobs Act of 2017 nearly doubled the allowable exemptions to the estate tax that existed prior to 2017. This ensured that even fewer families would be affected.

The estate tax exemption for individuals increased from $5.4 million to $11.2 million, and the estate tax exemption for married couples increased from $10.9 million to $22.4 million.

Unless your estate is valued at more than $11.2 million, you do not have to worry about the estate tax at this time.

But for those who are affected, there are numerous estate planning strategies available that can greatly reduce the amount owed. We can advise you on the best options for your family.

Advanced Estate Planning Strategies

Families with high-value estates face several complex legal and tax issues – estate tax is only one of them.

We offer a number of advanced estate planning strategies that are aimed primarily at reducing a family’s tax burden. In addition to minimizing or eliminating the estate tax liability, we also help you leverage the advantages of gift tax and generation-skipping tax to pass assets on for successive generations without risk of a tax liability decimating your estate at each generation.

Some of our most popular advanced estate planning tools and strategies include:

• Life insurance trusts
• Qualified personal residence trusts
• Grantor retained annuity trusts
• Asset protection trusts
• Land trusts
• Dynasty Trusts 
• Family limited partnerships or limited liability companies
• Asset gifting

​​Protecting Your Estate During Your Life And After You Are Gone

You have worked hard to build your family’s wealth and legacy, so it makes sense to put similar effort into protecting those assets after you are gone.

This includes protecting your assets against excessive taxes.

At your Family Wealth Planning Session, we can go into detail about how you can minimize the potential tax burden faced by your family so that you can maximize the inheritance you pass on to your loved ones.

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​Who Needs Long-Term Care Planning?

Thanks to healthier lifestyles and enhanced medical technology, life expectancies in the U.S. are at an all-time high.

But this also means more seniors will require some form of long-term care. Whether in-home assistance or a long-term nursing home stay, it is becoming inevitable that most of us will require such care at some point in our lives.

The challenge is that long-term care is growing more expensive every day.

In fact, some studies estimate that nearly two-thirds of families will run out of money within the first year or two of moving into a nursing home. Unfortunately, most private health insurance plans and Medicare do not cover long-term care costs – which can average $4,000 to $12,000+ per month in the U.S. depending on where you live and what level of care you require.

Whether for yourself or your aging parents, at Boone Legal we can help you plan for the financial, medical, and legal challenges that come with growing older.

We are here to help you develop a comprehensive plan to ensure your wishes and preferences are honored in the future, and to protect you and your assets if you become incapacitated and require assisted living or nursing home care.

How Elder Law And Medicaid Planning Can Help

With such exorbitant costs of long-term care, it is no wonder we are facing a looming elder-care crisis in this country. Indeed, it is heartbreaking for seniors to see their entire life savings (and the inheritance they worked so hard to leave their family) get gobbled up by long-term care expenses.

Fortunately, with the proper planning in place, you can rest assured that you and your loved ones will have the proper safeguards in place to keep you at home as long as you desire, cover the expenses of your care and receive the maximum quality of care when it is needed.

We can also help you qualify for Medicaid and other benefits to help cover these ongoing expenses.

Indeed, utilizing trusts and other asset-protection strategies, you and your loved ones may be able to take advantage of government benefits without “spending down” all of your assets or losing everything you own. We can help you design a comprehensive plan that allows you to live out your golden years without worry or financial hardship.

​Elder Law Is Not Cookie Cutter

Elder law involves a number of issues that are intertwined with traditional estate planning. For example, it is essential to have your durable power of attorney, last will, living trusts, and advanced directives reviewed at least every three years.

Your plan must include certain special provisions that – if not included – will create unnecessary obstacles for your family and your estate planning attorney.

Navigating the complex elder law landscape can be a daunting task. Having an experienced lawyer who is familiar with the process of long-term care planning is invaluable for ensuring not only the security and care of your loved ones, but also your peace of mind.

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When a Guardian is Needed

Whether through illness, injury, or mental decline, anyone can require a guardian to care for them if they become mentally or physically incapacitated.

Children automatically qualify by not having the “capacity” to be in charge of their own financial affairs and decisions about their well-being.

And an adult may qualify as not having “capacity” if you become seriously ill or injured.

Unless you have the proper estate planning in place that names the individual who will be your guardian in case of illness or injury, a probate judge will be deciding who will make medical and financial decisions for you if you are unable to make them for yourself. 

At Boone Legal, we can guide you through the often complex and emotional process of the probate court appointing a guardian for you or for your loved ones.

Obtaining Adult Guardianship

Seeking appointment of a guardian for an adult is a serious undertaking.

The law presumes that a person over age 18 can act for themselves unless shown otherwise. As a result, the probate court typically requires extensive proof that a guardian of an adult is warranted.

The process begins with the interested party filing a petition in court that requests the court declare the adult essentially “incapacitated,” at least from the legal perspective.

Sometimes, these proceedings are initially “ex parte” (in secret) so that a guardian may be appointed before other interested parties are aware, if there is a concern about other interested parties’ intentions or even the anticipated behavior of the adult at issue.

Many times, guardianship filings can lead to heated disputes between family members or close family friends who may claim they are better suited for the role.

Regardless of who files the petition, guardianship will only be granted if the court determines there is enough evidence to show the person is legally “incapacitated” to the point where they can no longer make legal, financial, or healthcare decisions for themselves.

​Who Is Eligible To Serve As An Adult Guardian?

Although courts typically give preference to a spouse or another close family member, a guardian does not have to be a relative.

Provided the person seeking appointment is a competent adult, close friend, or any other interested party, they are eligible to serve as long as the judge determines they are best suited for the role.

If a relative or friend is not willing or capable of serving, the court will appoint a third party to serve as guardian. Sadly, this can lead to horrible financial and/or physical abuse of the incapacitated person, so it is best to plan ahead and name a guardian in your estate planning documents to keep the courts out of the picture entirely.

​Guardian Responsibilities

Depending on the extent of the person’s incapacity, a court-appointed guardian can be given near complete control over your life.

There are two areas of decision-making where a guardian has authority: decisions about your well-being and decisions about your finances.

Decisions about well-being include determining your place of residence, your attending physicians, and your medical treatment.

Decisions about your finances include how your home is paid for, what your income is used for, whether to pursue legal actions on your behalf, how to manage your assets, filing your insurance claims, and many other matters.

Usually one person is appointed for both roles, but the court can also split the responsibilities among multiple parties.

For instance, one person may oversee the financial decisions, while another person handles living arrangements and healthcare.

Moreover, the court requires the guardian to file detailed status reports such as financial accountings at regular intervals or whenever important decisions are made, such as when an asset is sold or when you require a substantial expense for your care.

Some of the most common duties of adult guardians include:

• Paying ​your bills
• Determining where ​you live
• Monitoring ​your residence and living conditions
• Providing consent for your medical treatments
• Deciding how ​your finances are handled, including how ​your assets are invested and if any assets should be liquidated
• Managing your real estate and other ​property
• Keeping detailed records of all ​expenditures and other financial transactions
• Making your end-of-life and other palliative​ care decisions

With the huge responsibility and loss of control that comes with guardianship, the process can often feel overwhelming.

The best course of action is to do your estate planning ahead of time to name exactly who is your preferred guardian so that your family will not have to deal with a courtroom or lawyers in the first place.

Unfortunately, some of our clients did not do estate planning soon enough, and we are then called upon to help their family members with establishing guardianship for a loved one.

If you are in this situation trying to help a loved one, we can help.

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Our Condolences

If you are here to learn about the probate process after the passing of a loved one, we first want to say that we are very sorry for your loss.

We hope that the information you find on this page will simplify any legal and administrative headaches you might otherwise face during such a difficult time.

Overview Of The Probate Process

Probate is a process through the court system to ensure the legal transfer of assets from the deceased’s name to the names of the deceased’s legal heirs or beneficiaries.

Probate is generally also necessary to prove the validity of a will, appoint someone to manage the estate, inventory and appraise estate property, pay the deceased’s debts and taxes, and distribute the estate property as directed by the will (or by state law if there is no will).

What Is So Bad About Probate, And What Should I Do Next?

You might read online that probate is ‘bad news’ and that it tends to be very expensive and time-consuming.

It depends, but one thing is for sure: The probate process is a public process that can be avoided with proper planning in advance.

But if you are now in a situation where you must go through the probate process to administer the estate of a loved one, the best thing you can do is get educated and get help to complete the process as quickly and with as little expense as possible.

How Does Probate Begin?

State law designates who is entitled to begin the probate process.

The person with highest priority is the person who is named in the deceased’s last will as the “executor."

If there is no will, then the law generally establishes a hierarchy of who is eligible in what order, normally starting with a surviving spouse, then surviving adult children, and so on.

The individual who has priority would start the probate process by having an attorney prepare the legal documentation to initiate probate and by filing the original will with the probate court.

Depending on the circumstances of the estate and the family, sometimes probate can be opened without advance notice to interested parties; other times, advance notice to interested parties is required before probate is officially opened.

The best way to determine exactly what probate process applies to the estate is to meet with Boone Legal so we can review your particular circumstances and give you the best possible guidance.

How is the Executor Chosen?

If the deceased person left a last will and testament that is recognized as valid by the probate court, then the person named in the will as the executor typically will be appointed, barring extraneous issues such as that person’s illness or old age.

If the person named in the last will  and testament is unable or unwilling to serve as executor, or if there is no will at all, then the probate court may appoint an adult family member, trusted friend, or a professional third party.

How Does ​The Executor Get Paid?

State law provides that executors may be paid reasonable compensation for the time spent in administering the estate. This said, some executors, particularly if they are the surviving spouse or family members of the deceased, decline to be paid.

Could I Be Held Personally Liable For Making A Mistake As An Executor?

Being an executor is a big responsibility.

The probate code contains pages upon pages of complex legal rules and procedures that an executor must follow during the probate process. In addition, there are certain deadlines that an executor must meet in filing papers with the court and providing notice to interested parties.

If an executor does not comply with any of these rules, he or she can be held personally liable for any losses to the estate.

My Loved One Had A Trust… Will We Need To Go Through Probate?

In most cases if your loved one left a trust as the cornerstone of their estate plan, then no you do not need to go through probate.

However, there is one big caveat here: The deceased must have ensured that all of his or her assets were properly titled in the name of the trust or properly named the trust as beneficiary in order to completely avoid probate.

Unfortunately, not all estate planning attorneys who draft a trust for their clients ensure that assets are properly owned and beneficiaries are properly designated and perhaps most importantly, that these documents are kept up to date during ones lifetime. 

Time and again we have helped family members of a recently passed loved one who found out title and beneficiary designations were not proper, and then they face the frustration, expense and delay of a probate proceeding even though the person they loved had a trust.

You may be asking: Why is that?

Oftentimes, a trust was prepared many years ago and was never updated. Assets changed, the law changed, but the trust only got more out of date. That is why it is so very important that you carefully choose your estate planning attorney who will meet with you for regular reviews of your estate plan and your assets so that the planning you do now works as planned later.

This is why we do things so much differently than most other lawyers and law firms here at Boone Legal.

What Assets are Subject to Probate?

As a general rule, assets owned solely in the name of the deceased person are subject to probate.

By contrast, assets with title designated as “joint tenants with right of survivorship” are not subject to probate and pass by operation of law to the surviving joint owner. Also, assets with a “transfer on death” or “pay on death” designation, such as life insurance and retirement accounts, are not subject to probate and pass by operation of law to the designated person.

In some situations, however, assets that would otherwise pass by title or beneficiary designation to a specified person can be subject to the probate process. Please call us if you have questions about your specific situation.

How Are Probate Assets Distributed If There Is No Will?

When there is no will or trust to dictate who receives what, then probate assets will be distributed according to state law.

In other words, the state legislature has made their best guess as to who you would want to receive your assets.

The typical hierarchy is that all probate assets go to your surviving spouse; or if you do not have a surviving spouse, then all probate assets are split equally among your children; and so on following the branches of your family tree.

Where it gets tricky is if your surviving spouse is not the parent of your surviving children; or if you have a surviving spouse, no children, and a living parent (some states dictate that your surviving spouse split your estate with your living parent in this scenario); or even if your surviving spouse has children who are not your children (some states have complicated formulas for who gets what in this case).

You can see how things can get complicated quickly when you rely on state law alone instead of doing your own planning upfront.

How Long Does Probate Take And How Much Does It Cost?

Probate proceedings typically take around 6-12 months if there are no snags whatsoever. Some probate cases linger for two or more years if beneficiaries are disputing or if the deceased left property in multiple states.

In terms of cost, every probate proceeding is different. Probate costs include court filing fees, attorney fees, appraisal fees, professional fees such as tax preparation, executor compensation, document certification fees, recording fees, and more. Some states allow fees to be determined as a percentage of the probate assets, and other states provide that fees are determined pursuant to a statutory schedule.

How To Choose The Right Attorney For Your Probate Case

The best way to ensure your probate proceeding is handled properly and quickly is to choose your attorney wisely.

Do not assume that all attorneys are the same.

Too many lawyers only “dabble” in probate or trusts. Do not choose a lawyer who does probate “on the side” – this exposes you to blunders throughout the process, causing problems for you that should have never come up and ultimately delaying the resolution of the probate proceeding.

Plus, please know you are not required to hire the attorney who drafted the will!

Just because a particular attorney drafted the will does not mean that attorney must handle the probate process, nor are they necessarily the right person for the job. You need to be comfortable with the attorney and confident that they are the right attorney for you.

Choosing your probate lawyer is one of the most important decisions you will make.

If you put in the time and effort to find the right lawyer, you will be rewarded with a compassionate advisor who will help you navigate the probate process with minimum headache and hassle.

“What Do I Do Now?”

If you are ready to get started with the probate process after the passing of a loved one, please contact us and we will help determine your next best steps.

We are here in service to making this all as easy as possible on you, and we look forward to relieving any administrative or legal burdens you may face during this time of loss.

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