A Last Will and Testament is generally the foundation of any comprehensive estate plan. Whether you have a sizeable estate that requires numerous estate tools to properly plan for, or only a modest estate that does not require complicated estate planning, the starting point is typically the creation of a Will. For members of the Gay, Lesbian, Bi-Sexual and Transgender, or GLBT, community, executing a Will can be even more important.

Although the laws in some states have changed, or are changing, laws relating to wills, trusts and estate matters are still predominantly geared toward the concept of marriage. While same sex marriages are recognized in a small percentage of the states, the vast majority of states still do not recognize them. Even if you were legally married in a jurisdiction that recognizes same sex marriage, or domestic partnerships, if you now live in a state that does not, you may find yourself in the same legal position as if the marriage never took place. For this reason, creating and executing a Will takes on a heightened importance.

If you fail to execute a Will prior to your death, the state laws of intestate succession will determine how to dispose of your estate property. This typically means that a spouse and/or children will inherit first from your estate. If your state does not recognize same sex marriages, your spouse may not legally be entitled to anything from your estate.

Your Will, however, overrides any state intestate succession laws, allowing you to devise anything you want to your spouse or partner regardless of whether or not your state recognizes your marriage or partnership.

The Law Offices of James A. Miller is a member of the American Academy of Estate Planning Attorneys.

Most people have heard the terms “beneficiary” and “heir” used often. Unfortunately, they are often used interchangeably, when in fact they have distinct legal definitions. If you are a Milford resident who is in the process of planning your estate, or are considering doing so in the near future, an understanding of both terms may be useful.

Although each state defines estate planning terms, most states use a very similar definition of the terms “beneficiary” and “heir.” Both terms are frequently used when drafting a Last Will and Testament.

A beneficiary is someone who receive a bequest in your Will. The bequest may be cash, property or any other estate asset. What defines a beneficiary is that he or she is specifically mentioned in the Will as receiving something from your estate. For example, if you give your son Charlie your house in your Will, then Charlie is a beneficiary. Likewise, if you give your best friend Mary $10,000 in your Will, then Mary is a beneficiary.

A heir, however, is someone that stands to inherit under the laws of intestate succession. Intestate succession laws kick in in the event you die without leaving behind a valid Will. Intestate succession laws also apply when you fail to devise all of your estate through your Will. Although laws will vary among the states, heirs are usually your spouse, children, parents, siblings and other blood relatives.

A person can be both an heir and a beneficiary. In the above example, your son Charlie is both an heir, because he is your son, and a beneficiary because you specifically mentioned him in your Will.

The Law Offices of James A. Miller is a member of the American Academy of Estate Planning Attorneys.

One of the most common questions asked with regard to Wills and Trust is “what happens when a person dies and they didn’t have a Will?” The simple answer to that question is that the state’s intestate succession laws will govern the disposition of the decedent’s estate. Although individual state laws may vary somewhat, the basic concept of intestate succession is the same among all states.

The main purpose of executing a Last Will and Testament is to legally decide how you want your estate assets to be disposed of upon your death. If you do not execute a valid Will prior to your death, then you are said to have died intestate and therefore the state’s intestate succession laws will determine what happens to your estate assets. Intestate succession laws can also apply if a valid Will was, indeed, executed, but failed to dispose of all estate assets. For example, if you executed a Will which specified what you wish to happen to all of your property, except you forgot about a bank account and did not include a residual estate assets provision in your Will, then the funds in that account would be disposed of according to intestate succession laws because your Will failed to account for their disposition.

Intestate succession laws create a hierarchy of heirs who stand to inherit from your estate. In most states, at the top of the hierarchy are your spouse and children. What proportion they inherit will vary by state. If there is not spouse or children, then the law typically looks to other blood relative, such as grandchildren, parents, or siblings as heirs of your estate.

The Law Offices of James A. Miller is a member of the American Academy of Estate Planning Attorneys.

If you die and leave behind a Last Will and Testament, it is typically required to be admitted to a probate court for administration. Once the will has been admitted, interested parties are allowed to file a will contest if they feel that have grounds to do so. State laws vary with regard to what grounds can be asserted to contest a will and who may file a will contest; however, if a will contest is successful, the will is declared invalid and the assets distributed according to the laws of intestate succession.

In many states, only a beneficiary or heir may file a will contest. This includes anyone specifically mentioned in the will as receiving something or anyone who would otherwise inherit if no will existed. The person filing the will contest must give a valid legal reason for contesting the will as well. Being left out of a will is generally not a legal reason for contesting a will. Valid legal grounds for a will contest are often things such as the testator lacked the mental capacity to sign the will or was under duress at the time the will was executed.

If the petitioner is able to prove his or her case to the court, then the court declares the will to be invalid. Once a will is declared invalid, it is as if the will never existed. At that point, the estate assets are distributed according to the laws of intestate succession in the state where the will is being probated. Intestate succcesion laws also vary by state; however, the spouse, children and other blood relatives typically inherit the assets under intestate succession laws.

The Law Offices of James A. Miller is a member of the American Academy of Estate Planning Attorneys.

Creating an estate plan can be a complicated, yet necessary, project. Each estate plan is unique to the individual who is creating the plan; however, there are elements of estate plans that are commonly used. Trusts, for example, are frequently used as part of an estate plan. Understanding the benefits and limitations of a trust can be of great help to you during the estate planning process.

A trust is a legal agreement created by a grantor. Other names for a grantor include trustor, settlor and makor. As the grantor, you must designate assets that will be used to fund the trust. A trustee needs to be appointed and beneficiaries named who will benefit from the trust. Aside from those basic elements, trusts can differ significantly in both function and form.

A trust created as part of an estate plan generally offers three common benefits. First, a trust allows the grantor to retain a significant amount of control over the assets even after death. Second, a trust allows the beneficiaries access to the trust assets or benefits without waiting for the grantor’s estate to pass through probate upon death. Finally, some trusts also avoid payment of estate taxes. An irrevocable trust, for example, legally transfers the trust assets upon creation out of the name of the grantor, meaning the trust assets are not legally owned by the grantor upon death. Since the trust assets are not legally owned by the grantor, they are not subject to the estate taxes paid upon the death of the grantor.

Individual state laws control the formation and administration of trusts. As a result, you should consult with an experienced estate planning attorney prior to the creation of a trust to be certain that you understand any legal limitations placed on trusts in the state where you reside. In addition, in order to receive the maximum benefits out of a trust, you may need to make the trust irrevocable, which limits your options regarding control over the assets once the trust is created. Once you have created an irrevocable trust, you are locked into the terms of the trust except under certain

The Law Offices of James A. Miller is a member of the American Academy of Estate Planning Attorneys.

Creating a will is the beginning phase of estate planning. Financial planning is also an integral part of the process, and one that is already a part of our everyday life. Therefore, thinking about adding a financial plan to your estate plan should seem like second nature, right? Not necessarily, which is why it is essential to have regular discussions with your estate planning attorney regarding these matters.

Throughout your life you may choose to make investments, maintain savings accounts, make investments and start retirement accounts. What does any of this have to do with an estate plan, you might be wondering. Quite a bit, to be honest because, when financial planning and asset protection planning is not put in to place, it is possible to lose a considerable amount of this money at the time of your passing.

For those who do no have a will at the time of their passing, court fees add up quickly from those attempting to divide your estate up for beneficiaries. There are probate court fees, probate attorney fees, and estate taxes each eating up the worth you created during your lifetime. This is all avoidable through precise and specific estate planning, and will put your beneficiary’s minds at ease.

As mentioned previously, a will is just the beginning to estate planning. What if you experience medical issues? What if one of your beneficiaries passes away? How can you protect your assets from taxation? These are just some of the questions you are going to have to face during your estate planning process. Everyone needs additional asset protection, therefore your estate plan should answer the following questions in addition to those listed above:

1. Should I create a last directive outlining whether or not artificial life support should be used or not in the event that I’m incapacitated and that decision needs to be made?
2. Are there ways I can protect my estate if I become disabled, or diagnosed with a disease that prevents me from being able to actively make my own decisions?
3. How should my assets and properties be divided and distributed following my passing? Do I want to create a trust or is creating a will enough? How is trust administration handled? Who should be the trustee?

A qualified estate planning attorney can assist you in addressing these important questions.

The Law Offices of James A. Miller is a member of the American Academy of Estate Planning Attorneys.

Do you believe your loved one’s will is not valid? If so, it may be possible to contest. The process by which a will is contested is challenging, though, and should only be done so if you are certain things are amiss.

The rights to contest a will are held only by certain parties. For example, if you do not stand to potentially inherit from a will, you may not contest the will. So, if you have a close friend you believe you should have inherited from and did not; you do not have the right to contest the will.

Another caveat is you are on the will and do not agree with how property and assets are dividing amongst the rest of the beneficiaries, you do not have the right to contest. The only time a will is subject to being contested is when there is something clearly wrong. Here are some examples of when it is appropriate to contest a will:

• Invalid: Laws from state to state differ regarding what entails the validity of a will, but one underlining factor is how the will is signed. If the will is not signed when a proper witness is present, the will is not valid. Check with your state’s laws to confirm what a proper witness is before signing this document. Some states allow and independent second party, while others require an official seal from a notary.
• Not mentally competent: There are instances when a will is written when the individual is not in a mental state where it is proper to do so. If you believe this to be the case with your loved one, you have the right to contest the will. The process by which you prove mental incapacity is requesting your loved one be examined by their primary care physician and, following this examination ask for a written document stating whether or not your loved one should or should not have written their will.
• Deception: Did your loved one have a firm understanding they were signing a will when the document was presented to them? If not, this type of deception falls into the fraud category and provides you with the necessary grounds to contest the will. This type of deception also occurs when others make attempts to get your loved one to change their will.
• Undue Influence: In this case, individuals make attempts to get your loved one to change their will even when they do not want to do this. If you know this type of argument occurred and that your loved one gave in, you have the right to contest the will. This is tricky, though because it might work against you in the case of a power of attorney, child or spouse influencing your loved one’s decision.

Do not make any attempt to contest a will without legal representation. Secure an attorney immediately, and they will file a claim with the courts. The process may seem long and tedious to some, but this is a formula that must be followed when it comes to legal matters such as these.

The Law Offices of James A. Miller is a member of the American Academy of Estate Planning Attorneys.

If you’re thinking about the need to create a will, you’re on the right track.  There are 3 myths that should not be believed.  Take a look at the following information, to make sure that you understand the truths that go along with the use of a will.  If you have any questions, or if you’d like to execute a will, contact an estate planning attorney.

Myth: A will can be used to handle affairs during your lifetime.

While you can make changes to your will during your lifetime, your will has no authority until after your death.  This means that the decisions that you outline in your will won’t be effective until after your death.  There are other planning tools to consider that can be used during your lifetime.

Myth: If you don’t have children, then you have no need for a will.

A will is an important estate planning document for every adult.  While you’re able to use a will to appoint a guardian for your children, this isn’t its only use.  You can also appoint an individual to handle your estate affairs (i.e. executor) as well as decide how your assets will be distributed.

Myth: Once you create a will, you’re set for life

This isn’t true.  Once you create a will, it should be reviewed every three to five years.  This gives you the opportunity to make changes so that your will reflects your current wishes.  Law changes and other life changes may require you to update your will throughout your lifetime.   Don’t create a will and then forget to update it.

If you’re considering creating a will, now is the time to do so.  This will allow you to be in control of important decisions.  If you have any questions about creating a will, consult with a qualified estate planning attorney.

The Law Offices of James A. Miller is a member of the American Academy of Estate Planning Attorneys.

One of the most important estate planning tasks you have is to draft a will.  A will not only distributes your property, but names a Personal Representative to administer your estate, as well as a guardian for any children under the age of 18.  But did you know that your Personal Representative may need to post a bond to the Probate Court?

Unless you state that your Personal Representative can serve “without bond”, the Probate Court will require that they purchase a bond from an insurance company. This is to protect the heirs in case the Personal Representative misuses the assets or takes them for their own use. Both the amount and cost of the bond depend on the value of the assets in the estate. The bond is generally one of the costs of probating the estate that is paid before the final distribution of property to the heirs.

Whether or not your Personal Representative should be allowed to serve without bond is a decision that should be made based on the degree of trust that you place in the person. If you have a non-family member as a Personal Representative, you may want to have a bond. If you have a large family and not everyone gets along, you may want to have a bond. The cost is generally modest and the cost in proportion to the amount at risk and is probably worth peace of mind if there is any doubt at all.

On the other hand, if your only child and sole heir is also named in the will as the Personal Representative, you may not find it necessary for them to post a bond.  An estate planning attorney can help you draft a will and explain each and every clause and present the options available to you.

The Law Offices of James A. Miller is a member of the American Academy of Estate Planning Attorneys.

Don’t wait until your laying in a hospital and near death before putting your affairs in order. Creating a Will in a less-than-ideal environment can subject your estate to future litigation if one or more family members suspect you were under duress. An ambitious family member may take advantage of your illness or partial incapacity to pressure you into signing a Will that may not reflect your true intentions.

A valid Will must be signed by you in the presence of at least two witnesses who must also sign the Will.  These witnesses will not be individuals who stand to benefit from your death or estate. Many states also recognize a “self-proving” affidavit signed by the witnesses before a Notary Public. This affidavit makes it easier to prove the validity of your Will should it be contested. Please note, however, that merely having your Will notarized does not prove its validity.

Having your Will prepared by a competent Estate Attorney can ensure your interests are protected and that your true wishes are not compromised by an unscrupulous family member.

The Law Offices of James A. Miller is a member of the American Academy of Estate Planning Attorneys.