What is estate planning?
Your estate plan sets forth in writing your wishes concerning the administration of your estate upon your incapacity or death. For those with larger estates, tax planning is often required.
What assets are included in my estate?
Your estate includes life insurance, retirement accounts, your community property interest (if applicable), separate property, trust assets, and any other assets you own at the time of your death.
What is a will?
Every person who is eighteen years of age or older needs a last will and testament, so that they have the final say in the distribution of their property after their death, rather than leaving such vital decisions to the state. Your will is the basis of an estate plan and is often the most important document in your estate plan. It is the document that sets forth your wishes regarding the disposition of your property after your death, whether it be through a specific bequest, a testamentary trust, or otherwise. It is also an instrument in which you can nominate persons to take care of your minor children if you and your spouse or partner should die, to serve as the personal representative (executor) of your estate, and to serve as trustee of any trusts that might be created through your estate plan. Your will may be very simple and straightforward, or may require more complicated estate planning for tax purposes, depending on the size of your estate and the nature of your assets. Discussing your wishes regarding your property with an attorney is an important step in ensuring that your wishes are followed, while simultaneously protecting your heirs from unnecessary tax consequences.
If you have no will, you are considered to have died intestate, and your property will pass as mandated by the Arkansas probate code or the probate laws of the state in which you reside at the time of your death. The preferences that you might have given to your loved ones orally will not be considered. If you have young children, then the state may have more say in who will take care of them in the event you and your spouse have died.
Should I put all my property in a trust or is a will sufficient?
Whether you require a trust in addition to a will depends on your particular circumstances, the size of your estate, and your individual wishes. One instance in which a trust may be advisable is if you have properties in different states, but a will is typically sufficient to transfer assets after your death. In some circumstances, a will may create a trust upon your death to hold specific assets.
Do all assets pass according to my will?
Not all assets pass under the terms of your will. You may designate some assets, such as life insurance, retirement accounts, assets in a trust, and other accounts, to pass to a specific designated beneficiary upon the occurrence of specific events such as your death.
Why do I need a Durable Power of Attorney and Living Will and Power of Attorney for Health Care?
A Durable Power of Attorney can be very helpful to you, because it permits the individual you specify to act for you in case of your disability or incapacity. Under a durable power of attorney, the person you specify should be able to conduct financial transactions and other matters without requiring the appointment of a court-appointed guardian, which can be quite burdensome to your loved ones, because they require court authorizations and restrict the guardian in ways that you might not intend.
In addition, you may have concerns about being kept alive when you are in a persistent vegetative state with no chance of recovery while your estate is depleted by medical expenses that will ultimately make no difference. In those cases, your Living Will and Power of Attorney for Health Care grants to the person you name the authority to make decisions concerning health care, and particularly, the administration and withdrawal or withholding of life support and other life-sustaining medical treatment in the event of terminal illness or permanent unconsciousness or incapacity. Your Living Will must be executed by you while you are competent to do so, must be dated, and must be witnessed or notarized, and you should notify your loved ones that you have stated your health care preferences in this document in case the need for this document ever becomes necessary.
When should I update my will?
If you already have a will, you should review your will periodically to make sure it adequately sets forth your wishes. You should consider changing your will in the following circumstances:
- you marry or divorce;
- you give birth to or adopt a child;
- when a family member or other beneficiary of your estate dies;
- when there are changes in the federal estate tax laws or state tax laws that might impact your estate;
- when someone you’ve named as an executor, trustee, or guardian is no longer able to fulfill that role;
- when you decide to change an executor, trustee, or guardian;
- when you want to change the way your property will be distributed;
- when you move to another state;
- when your net worth increases or decreases dramatically;
- when your children are no longer minors, or are old enough to handle financial matters on their own; or
- when you wish to eliminate gifts to certain beneficiaries.
In such cases, your will should be updated, and The Brad Hendricks Law Firm can help you do so while at the same time making sure that you have the best estate plan to fit your circumstances.
You should never try to change your will by marking on a previous will, i.e., writing notations in the margins or crossing out words. This only risks the possibility of ambiguity and a potential will contest.
Exceptions that might preclude the revision of a will include the testator’s incompetency or those instances where the testator is under undue influence from another person.
If drafted properly, your will may do the following:
- provide your specific wishes for the disposition of property after death;
- appoint a personal representative (executor) and successor representatives to administer your estate;
- nominate guardians and successor guardians if there are minor children;
- nominate guardians or successor guardians to administer the property of minor children (a trust may be used for this purpose, in which case trustees perform this function);
- create a trust or life estate;
- can waive the requirement of a personal representative or executor to post bond;
- can name assumed order of death in the event of simultaneous death of spouses/partners and/or children;
- can provide for alternative distribution of property in case a beneficiary named in the will dies or is otherwise unable to accept property under a will; and/or
- can specifically state the powers granted to the executor.
Estate Administration and Probate
The administration of your estate (also commonly known as “probate”) is the court proceeding through which a will is proved to be valid, if there is one, and the property of the deceased is administered. Even estates in which there is no Last Will and Testament may require administration through the court. This process includes the collection of assets, the payment of funeral expenses and other bills, the resolution of any remaining tax matters, and the final distribution of property to one’s heirs.
How much will an estate plan cost? How much does it cost to probate an estate?
If you don’t have a will, the expense of making a will should not keep you from making one. Even if you think you have all your property held in non-probate form (a living trust), a will is still a good idea, as you might have missed something or money might be paid to your estate after your death. An example of this would be if one is killed in an auto accident where another is at fault, in which case an insurance settlement could be owned to your estate.
The Brad Hendricks Law Firm has substantial experience in estate planning. Our firm will take into full consideration your wishes, the nature and extent of real property and other assets you might own at the time of your death, and tax and other financial matters that might have consequences for your loved ones. The cost for your estate plan depends on the complexity of your estate. Please call our firm for a free initial consultation. You owe it to your loved ones to leave your affairs in order!
Regarding probate costs, The Brad Hendricks Law Firm will help you administer the estate of a deceased family member for a reasonable fee, depending on the complexity of the estate to be administered. Please contact our firm for a free consultation with an experienced attorney in the event you need assistance with the probate or administration of a loved one’s estate. We can help make this difficult time go as smoothly and efficiently as possible for you and your family.contact us today | we are here to help
The Brad Hendricks Law Firm proudly serves clients throughout Arkansas, including Arkadelphia, Benton, Conway, El Dorado, Fayetteville, Fort Smith, Hot Springs, Jonesboro, Little Rock, Pine Bluff, Texarkana, and West Memphis as well as numerous counties throughout the State of Arkansas, including Arkansas County, Baxter County, Benton County, Bradley County, Calhoun County, Clark County, Columbia County, Conway County, Crittenden County, Faulkner County, Garland County, Hempstead County, Hot Spring County, Izard County, Lawrence County, Lonoke County, Monroe County, Nevada County, Pike County, Poinsett County, Polk County, Pope County, Prairie County, Pulaski County, Saline County, Sharp County, Stone County, Washington County, White County, Woodruff County, and Yell County, and all other counties in the State of Arkansas.