Comprehensive Estate Planning
Almost everyone has heard a friend or family member talk about “the nightmare” they dealt with during the probate of an estate. Literally no one ever has talked about how probate was easy or fun. Why? Because it is a nightmare. It is time consuming and stressful during an already traumatic time.
Putting the inventories, accountings, bonds, will contests, filing fees, legal fees, debts and demands hearings, and literally everything else that goes with it aside, just getting to the courthouse to probate a Will and qualify as Executor can be strenuous enough and take up unnecessary time. Even in Virginia, which is generally considered to have one of the least offensive probate systems, the probate of a simple estate can take over 12 months and require the executor to file numerous documents with the Commissioner of Accounts and the local court, and to pay for fees, taxes, insurance bonds, etc. This can create significant time delays and untold complexities … especially for those having their own small businesses where business continuity and succession are important. Why put your family through this?
There are a number of ways to avoid probate and to ensure that your designated heirs receive your assets efficiently (and to have someone manage assets for them in the case of heirs who needs assistance with financial matters). One example is a revocable living trust. A revocable living trust is an estate planning tool used as a vehicle for the distribution of your assets. The term “living trust” simply means that the trust was established during the lifetime of the grantor (as opposed to a testamentary trust that might be established through a Last Will & Testament). The grantor “funds” the trust with assets owned by the grantor. The grantor can nominate himself/herself as the trustee, and thus, retain control over the assets during the lifetime of the grantor.
The purpose of the revocable living trust is to re-title assets from the grantor to the trust so that the grantor does not individually own those assets at the time of the grantor’s death. If the grantor does not own assets at the time of the grantor’s death, then logically, there are no assets to probate. Instead, if the assets are owned by the Trust, then the Trust continues to hold the assets, and a successor trustee (who you have previously appointed) steps into the shoes of the grantor/original trustee to hold, manage and distribute the assets pursuant to the directives of your Trust.
A revocable living trust is convenient and fluid. It can be modified at any time by the grantor. It can also be revoked. Because it is revocable during your lifetime, this type of trust does not provide protection from laws related to spenddown qualification for government assistance programs for nursing home care, nor does it automatically provide for federal estate tax minimization. Other types of trusts are needed for these issues. However, upon your death, the Trust becomes irrevocable, and the successor Trustee must follow the directives of the Trust, and thus, you can use this type of Trust as a way to direct asset management “from the grave” and to protect your family members “from themselves.”
Unlike the probate system, assets held by a revocable trust are generally available for immediate use and distribution by the trustees and beneficiaries. Your fiduciary immediately steps into your shoes upon your death. The successor trustee does not need to wait for an appointment with the Clerk of Court to qualify as your fiduciary. In most cases, unless you say otherwise, the successor trustee is not required to file inventories or provide accountings of the estate.
Guidance for Asset Protection
Successful wealth protection doesn’t just happen. You have a better opportunity to effectively blockade others from attempting to seize your assets if you do the following:
- If you protect yourself before trouble strikes.
- If you use the right strategies and tools for your particular situation.
- If you have a professional advisor with the necessary skills to build your best financial fortress.
- If you enthusiastically shelter your wealth as you generate your wealth.
Asset Protection is a strategy to title your savings, property, business, and other assets to shield them from lawsuits and other claims. Asset Protection is a safety net. It doesn’t guarantee that you won’t get sued or run into other financial calamities; but if you do, you will lose fewer assets. Avoid the financial free-fall. Do not leave yourself and your family vulnerable or exposed.
You cannot re-title assets after the lawsuit has been filed. In Virginia, there is a specific statute that states that doing so is called a fraudulent attempt to avoid a creditor, and a Judge can reverse the asset protection strategies you attempt to put into place. For that reason, Asset Protection is something you need to discuss with a lawyer now! Call me. I can help.
Get Your Resolutions Today
If you were looking for a lawyer you can trust with your estate planning and probate needs, contact me today. Call me at 888-356-7459 or email me here to schedule your initial consultation at my office in Moneta. I help those throughout the Smith Mountain Lake area, including Hardy and Union Hall. I look forward to helping you earn a swift and secure resolution to your legal needs.