Estate Planning & Probate
Estate planning is a broad term used to describe the process of anticipating and arranging for your death or disability. More to the point, it is the process of taking care of yourself and the people you care about when you are unable to do it yourself.
Estate planning can be quite complicated and most choose to get personalized advice from an expert. It’s possible that one day you will acquire money where you are concerned about the federal estate tax. It’s also possible that you might own a business in North Dakota and have questions about passing it along to someone else. Maybe you have questions about leaving money to a charity, creating a living will, or even naming beneficiaries for an insurance policy or retirement account. Either way, you’ll want to speak with a lawyer.
At SW&L, we use a variety of instruments to carry out the client’s wishes, including simple wills, pour-over wills, revocable living trusts, irrevocable trusts, irrevocable life insurance trusts (ILIT), incentive or discretionary trusts, special needs trusts, pet trusts, durable power of attorney for financial matters, durable power of attorney for health care decisions, living wills, beneficiary designations, life estate deeds, transfer on death deeds, and joint tenant with right of survivorship deeds. Estate planning may also include efforts to decrease tax liability, transfer farms and other businesses, and avoid probate altogether.
The estate planning department takes into account each client’s individual circumstances and drafts a comprehensive estate plan. If you need help planning your estate anywhere in North Dakota or Minnesota, call or email SW&L today.
Probate is the process of resolving claims against a deceased person and distributing his or her remaining property. There are several technical aspects of probate administration, including the appointment of the personal representative, acceptance of the will, giving proper notice to creditors, making proper distributions, the timing for claims and distributions, and tax issues. A personal representative owes fiduciary duties to interested persons, so it is important probate laws are followed.
The estate planning and probate department will help you navigate the probate process and help ensure the personal representative’s risk of liability is minimized. If you have questions or need help with the probate process, contact the estate planning and probate department at SW&L Attorneys.
Health Care Directives/Living Wills
Living wills and other advance directives are written, legal instructions regarding your preferences for medical care if you are unable to make decisions for yourself. Advance directives guide choices for North Dakota and Minnesota doctors and caregivers if you’re terminally ill, seriously injured, in a coma, in the late stages of dementia, or near the end of life.
When you plan ahead, you can get the medical care you want, avoid unnecessary suffering, and relieve caregivers of decision-making burdens during moments of crisis or grief. You also help reduce confusion or disagreement about the choices you would want people to make on your behalf.
Advance directives aren’t just for older adults. Unexpected end-of-life situations can happen at any age, so it’s important for all adults to prepare these documents.
In the legal sense, you do not need a Will. In a practical sense, you may want one. It allows you to make certain decisions with the force of law. The main decisions you make with a Will are: (1) name the person(s) who are to receive your assets; (2) direct how the person(s) is to receive your assets; (3) name the guardian of your minor children, and (4) name the person who administers your estate. If you do not have one, the state of North Dakota will make those decisions for you.
A Will also allows you to decide how a person receives your assets at your death. You may decide to give your property outright to another person. If assets are distributed outright, the person can do whatever he or she wants to with the asset. You may decide you want to keep supervision over or exercise some control over your assets. For example, you may want to keep your farmland in your family for the next generation. One option would be to create a testamentary trust within your Will so that your family may enjoy the benefits of the farmland without having the authority to sell the property. With a testamentary trust, the Trustee would follow your directions and administer the farmland for the benefit of your family. It also allows you some flexibility on how your assets are distributed to others. If you do not have one, the laws of intestate succession generally direct your property to be distributed outright.
A Will allows you to decide who will be the legal guardian for your children after your death. A court will usually give deference to your choice. If you do not make this decision, someone may petition to be a legal guardian. There is a much greater chance of competing petitions or disagreements if you do not make this decision.
A Will allows you to decide who will administer your estate in probate. This person is called a Personal Representative (or sometimes referred to as an Executor). The Personal Representative pays your debts and carries out your wishes you have stated. Without a Will, state law dictates the order of priority for who will administer your estate.
A Will is just a piece of paper unless it meets certain legal requirements. Hiring the estate planning department will give you peace of mind. Also, keep in mind a Will is just one piece of the puzzle. The estate planning department will guide you and help develop a comprehensive estate plan covering all of your needs and concerns while minimizing the risk of disputes.
At SW&L, we emphasize convenience and flexibility for our clients. For many individuals and families, a trust provides just that. With a trust, one can designate assets to be managed by a trustee for the benefit of only the individuals designated. This can protect assets from claims by creditors or in-laws.
Power of Attorney
A general power of attorney is a type of directive in which you name a person an attorney-in-fact to make your legal and/or financial decisions for you when you are unable to do so. The person you name may be a spouse, other family members, friend, or member of a faith community.
Choosing a person as your attorney-in-fact is important. You must determine the amount of power given to the person. The attorney-in-fact can be given the authority to address most of your legal and financial matters (“general power of attorney”), or they can be given the authority to handle only one particular issue (“specific power of attorney”).
You may also want to consider creating a durable power of attorney. A durable power of attorney serves the same function as a power of attorney. However, this relationship remains effective if you become incapacitated.
You are never too young to have a power of attorney created. Unplanned circumstances can happen at any age, so it is vital for all adults to prepare these documents. Contact the estate planning department for more information.
Guardianships and Conservatorships
Guardianships and conservatorships are court-involved processes whereby a person is seeking permission from a court to take over decision-making for another individual. A common example of the need for guardianship and conservatorship arises in the context of a family member struggling with mental health issues such as Dementia or Alzheimer’s. In this example, the family member suffering from this illness may no longer be able to safely make his/her own decisions concerning health care, residential placement, or even ensuring bills are promptly paid. A guardianship and conservatorship allows a third party (usually a relative) to step in and make decisions for the best interests of the person suffering from such illness. Guardianships and conservatorships are also routinely utilized in the context of traumatic brain injuries, severe substance abuse, physical and mental abuse, and financial exploitation.
Guardian Ad Litem
A guardian ad litem in the context of adult guardianships and conservatorships is an independent attorney whose sole job is to act in the best interests of the protected person (the person who is alleged to need a guardian and conservator). Whenever a guardianship and conservatorship matter is started, a guardian ad litem will be appointed to interview the protected person and proposed guardian and conservators and will give a recommendation to the court on whether the protected person is in need of a guardian and conservator and whether the petitioner (the person asking to be the guardian and conservator) should become the guardian and conservator.
Asset protection planning is about protecting your assets from creditors. Anyone can get sued. Lawsuits can stem from car accidents, credit card debt, bank foreclosures, or unhappy customers, among many other things. If someone wins a monetary judgment against you, your family could become bankrupt trying to pay it off. To keep your assets away from creditors, you need to move them somewhere where creditors can’t reach them. Asset protection techniques include maximizing contributions to IRAs, moving funds to an irrevocable trust, re-titling various assets, or using limited liability companies or family limited partnerships are all possible options.
To develop an asset protection plan, you will need to speak with us to discuss your short – and long-term financial goals. This will help us create a plan that will work for you.
It is important to note that asset protection planning only works if you act before you are sued. Under North Dakota law, you may not defraud current creditors. If you are already being sued or if you know you are going to be sued and you transfer assets so that creditors can’t reach them, the court will reverse the transfer. That is why it is a good idea to put a plan into place now.
Contact SW&L Attorneys Today
If you have an estate planning or probate question, contact SW&L Attorneys in Fargo today at 701-297-2890.