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services: Estate & Gift Planning

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Estate Planning Considerations:

Who will serve as your estate representative?
The estate representative can be a close family member or a trust company. If an individual is appointed, he or she should have the time and ability to work with legal counsel and the accountant in order to identify and value estate assets, pay debts, make proper distributions of assets and understand the reporting requirements of estate activities. Consideration should be given to a first and second alternate estate representative in the event your primary representative is unable to serve.

Who will serve as the guardian for your minor children?
In the event you and your spouse pass away while your children are minors, you have the opportunity to nominate a guardian to care for them until they reach the age of majority. Depending upon your estate plan, a guardian may be needed for the estate and person of your children. A guardianship of the estate is a probate process whereby assets left to minor children are administered by a guardian with probate court supervision. This arrangement can be cumbersome since court filings and approval are needed throughout the administration. A better arrangement is to leave assets in a non-testamentary trust for the children that can be managed in accordance with the trust agreement without probate court oversight. If all assets of a minor are managed in such a trust, the guardian's primary purpose would be to make decisions concerning the person of your children that include such matters as healthcare, education, place of residence, etc. Consideration should be given to nominating a first and second alternate guardian.

Who will serve as your attorney-in-fact or agent of your financial matters if you become incapacitated?
A cumbersome probate process arises where an adult becomes incapacitated and has made no prior arrangements to have his or her financial affairs managed by another person. The result is a guardianship. Such an undesirable outcome can be avoided with the use of a durable power of attorney that names another trusted individual as attorney-in-fact. An attorney-in-fact is simply an agent who has been given the legal authority to transact financial matters on behalf of the incapacitated person. The powers provided may be as broad or narrow as desired based upon the nature of assets involved, business to be transacted and ability of the agent.

Who will serve as trustee of my living trust when I can no longer serve as trustee?
Many individuals choose to serve as their own trustee until they become disabled or pass away. At that stage, a new trustee must assume the duties associated with the trust arrangement. The successor trustee may be a friend, relative or trust company. There are certainly advantages and disadvantages to using either an individual or professional trustee. In selecting a trustee, consideration should be given to the complexity of the trust terms, length of time a trust may need administered, maintenance of family harmony, management of assets and availability of resources. One or two alternate trustees should be named where individuals are used. Also, where a corporate trustee is named, a trust adviser should be appointed to ensure that issues important to the family are being adequately addressed by the trustee. The trust adviser is usually given the ability to approve investments and remove the trustee.

What pattern of distribution do I want for my beneficiaries?
A critical element of any estate plan is determining how and when assets will be distributed to beneficiaries. Trusts can provide the necessary flexibility to care for multiple beneficiaries at different stages. That is, during the life of a surviving spouse, a trust will likely be used to care primarily for the surviving spouse. This is especially true where the children are adults. Upon the death of the surviving spouse, the trust is then either held in trust for or distributed outright to the children. Funds can be provided at various times for the ongoing care of beneficiaries. Eventually, the assets are distributed outright to beneficiaries and the trusts closed. Consider when your beneficiaries are prepared to receive outright distributions of their inheritance. Criteria used in making this determination may include age, education, employment and other goal achievements.


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