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Giving Notice to Creditors Best Defense

When someone acts as the Executor of a probate estate or the Successor Trustee of a trust, they often focus on the ultimate beneficiaries of the will or trust.  The Executor or Trustee tends to be concerned about whether a beneficiary will object, or how quickly they can distribute to a beneficiary in need.  While certainly valid concerns, you should not overlook the creditors of an Estate.

When someone passes away, they will owe money to someone.  Sometimes it is as simple as the last month’s utility bills.  There are also usually bills owed from the last illness, like medical or funeral expenses.  There may be larger debts owed such as credit card bills and the mortgage.  Just because someone has passed away does not mean that these debts can go unpaid.  Indeed, the assets of an Estate must be used to pay the last bills of the deceased person.

An Executor or Trustee is not personally responsible for the debts of the deceased, unless the Executor or Trustee guaranteed the debt (such as a co-signer for a mortgage).  The Executor or Trustee has a legal obligation to use the deceased’s assets to pay outstanding bills.  If an Executor or Trustee fails to pay known creditor’s bills when there were assets in the Estate to pay that bill, then the Executor or Trustee could be liable to pay that bill him or herself.

When someone passes away, a creditor has up to three years to go after the deceased person’s assets in order to have those assets used to satisfy the bill.  However, that time can be cut short by simply giving notice to creditors.  By mailing notice to known creditors and publishing notice in the newspaper, the Executor or Trustee can force creditors to file a claim for payment within 60 to 90 days.  If the creditor fails to timely file, then their claim is forever barred by statute. Continue reading “Giving Notice to Creditors Best Defense”

Executor Has Solemn Duty

When a probate case is filed with the court, the court appoints an executor to manage the probate.  When someone is appointed as an Executor – also known as a Personal Representative or Administrator– there are certain legal obligations and duties he or she must carry out.  In Douglas County, an Executor must actually sign a court-form acknowledging that they bear these duties before they can begin to act on behalf of the Estate.

Foundational to all of these duties is the fact that an Executor acts in a “fiduciary capacity.”  This means that the Executor must manage the assets of the Estate and treat all the beneficiaries and creditors of the estate fairly and equally.  The Executor is often a beneficiary of the Estate, and he or she cannot show preferential treatment to him or herself, nor to any one beneficiary or creditor.  These duties can be generally broken down into the following:

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Probate is Not a Four Letter Word

Sometimes I think “probate” is a four letter word.  Many people are more concerned about avoiding probate than avoiding the IRS.  Yet, many people do not understand what probate is.

Probate is the court-supervised process of transferring assets from one generation to the next.  Under strict laws and deadlines, a judge requires the executor to gather your assets, pay your creditors, file your last tax return, and then distribute the assets.  If you leave a Last Will and Testament, then the judge generally directs that the assets be divided as you instructed.  Think of a Last Will as legally-enforceable instructions to the judge about where you want your belongings to go.  If you do not leave a Last Will, then state law provides that your assets are to be distributed to your next-of-kin.

As a court process, there are fees and costs involved in a probate. There is a court filing fee (between $200 and $600 per statute). There may be attorney’s fees, and your executor is entitled to a percentage of the assets probated as compensation for all of his or her hard work.  As a rough estimate, approximately 5% to 10% of the value of the assets will be used to pay for court fees, costs, and compensation.

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Property Ownership Affects Us Every Day

I deal with a lot of property issues in my practice.  They come up in all sorts of matters from family law, to guardianships, to trust and business matters.  Issues of ownership are fundamental in our lives.  Just think about it: whether you lease your home, own it outright, or own it subject to a mortgage and whether you do so individually, or with another person, all affect your rights in the home.  The same is true for your cars, bank accounts, and the like.  These questions all affect us when we buy something, sign for a loan, insure an asset, or determine the best way to invest an asset for ourselves or our family.

There are several basic ways to own property. This article will to give you broad overview of those issues.

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Planning for Your and Other’s Care

“But I don’t have an estate.”

This is a common response I receive when I tell people I am an estate planning attorney.  People often give me this response because:  (1) they do not want to talk about death and dying, or (2) they do not think they have enough money to consider “estate planning.”

In short, this person is wrong.  Everyone has an estate, no matter the size.  This is because proper estate planning is not only about what happens to your stuff when you die.  Instead, the first goal of any estate plan should be about taking care of you now and in the future, while you are alive.

Estate planning at its core is really about taking care of people.

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Elder Law Defined

Elder law is an area of law that includes estate, public benefits, and end-of-life planning.  In contrast, estate planning is a narrow area only concerned with protecting and transferring your assets to your beneficiaries and heirs upon your death.  Traditional estate planning is based on the misconception that the only issue you need to plan for is what happens to your stuff when you die, and how to avoid paying taxes.

Elder law is more comprehensive.  It helps you plan to maintain your independence, puts a protective covering over your assets, helps you access resources to pay for medical care, and minimizes burden on your family and friends.  Continue reading “Elder Law Defined”

Spring Cleaning Your Estate Plan  

Over the last several weeks, I have addressed how you can use spring cleaning to help you organize your affairs.  The focus has been on gathering documents that your loved ones will needs to make sure you are taken care of during life, but also that your affairs are smoothly taken care of after life.  I recommended that you include a copy of your Last Will and/or Trust for your loved one.  But, which one is best for you?

This is often the first question a client asks me. What a client often does not understand is the difference between a Last Will and a Trust. Although both often result in passing your property to the next generation, they are very different legal documents, with different purposes, and different mechanisms. Continue reading “Spring Cleaning Your Estate Plan  “

Spring Cleaning for After Life

       

             I have been writing about how to use this post-tax/spring season to refresh your legal and financial documents so that, when something happens to you, your loved ones have the documents and information they need.  When doing spring cleaning, there is inevitably a chore I do not want to do – some deep cleaning, usually with a toothbrush, that is just down right unpleasant.  But I do it anyway.  Usually because I know it needs to be done to take care of my family.  The same is true for gathering documents and information that your loved ones will need after you have passed away.  By gathering these things now, you can streamline the process for your family members and friends.  In addition to the documents I listed in my last article, here are some additional documents or information your loved ones should have after you’ve passed away:

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Spring Cleaning for Disability

Last time, I talked about using spring cleaning to organize your legal and financial documents to make sure that they are accessible to your trusted family members and friends.  This is an excellent time of year to gather certain documents and information in one place so your loved ones have the information they need in order to take care of you, pay your bills, and make informed decisions about your care.  Here’s a list of documents or information your loved one should have if you are alive, but not well:

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Spring Cleaning for Your Loved Ones

With the passing of April 15th, and the beautiful weather finally rolling in, I am suddenly motivated to do some spring cleaning.  Now, if you know me, you know how rare it is for me to be motivated to actually clean.  But, I have found that this time of year is an excellent time not just to air out the sheets and clean the carpets, but to also go through legal and financial documents to make sure everything is in order.

This type of spring cleaning is not about scrubbing the nooks and crannies of the house, but rather about making sure that your loved ones have the information and documents they need to take care of you, should something happen.  The idea is to gather your key documents and information in one accessible place so that your trusted family members and friends have all the information they need to take care of you in the event of an emergency.  It can take months for your bills and bank statements to trickle in, especially if they are only produced quarterly or semi-annually.  In some cases, they may never come to the house, especially if you have selected to go paperless.

In this situation, it is vital to gather certain documents and information in one place so your loved ones have the information they need in order to take care of you, pay your bills, and make informed decisions about your care.  A delay of weeks or months could cause serious problems for you, especially if it is the difference in paying your mortgage.  In the next few articles, I’ll go through the types of documents and information you should gather.

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