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May 2015
Dear Friends,
In this issue of New Dimensions in Estate, Trust & Business Planning, our focus is on several things you can do now so that your estate plan will work the way you intended. To this end, we briefly discuss the selection of a successor trustee and introduce a Trustee Manual designed to help your family administer your trust following your incapacity or death. The main article is on "How to Avoid a Disastrous Will or Trust Contest." Sometimes, however, despite your best planning, family members or others might contest your plan. If this happens, please know that our firm has several experienced litigation attorneys with experience in these types of disputes to help guide your family through it.
Many of you know our firm because of our estate planning services and may have attended a Wills vs. Trusts workshop or Elder Law workshop. These workshops are an effective way to introduce our services to others. Please know that we offer legal services in many other areas, too, and are introducing new client seminars on business ownership concerns and family law issues (divorce and child custody). Please click here for more information and please spread the word about these free workshops to your family and friends.
The Attorneys at Carrell Blanton Ferris & Associates, PLC
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CLIENT SEMINARS
To better serve and educate our clients, we are offering our regular
Wills vs. Trusts
and Elder Law seminars. We also have business seminars and Family Law seminars in May.
If you would like to attend a workshop click here to find a date and time convenient for you.
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INTRODUCING THE CBF SUCCESSOR TRUSTEE MANUAL
If you become incapacitated due to accident or illness, or you pass away, there may be a "glitch" in your plan that you never anticipated. You see, the person (or persons) you've named to act as "Successor Trustee" of your Living Trust may never have done anything like that before and will have no idea what to do! And if your Successor Trustee does things wrong, your beneficiaries may suffer and your Trustee may be held personally liable! That's why we've created a "Successor Trustee Manual" - - so you can enjoy the peace of mind that your plan will work properly, as you originally intended. Click here to find more information and how to obtain a manual for your family.
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| LEGACY FIDUCIARY SERVICES, PLC
Are you struggling with whom to name as your Successor Trustee?
Perhaps you're concerned about whether any of your family members can handle all of the duties and responsibilities of administering your trust when you die. Or, perhaps you want to lift this burden from their shoulders altogether. Legacy Fiduciary Services, PLC (LFS) may be the solution. LFS was established by Carrell Blanton Ferris & Associates, PLC to serve as trustee of trusts created and governed pursuant to the laws of Virginia. LFS attorneys are experienced fiduciaries who are dedicated to ensuring that your careful planning will be implemented. We make it our job to stay current with changing trust laws and regulations, and will work closely with your financial advisor to help ensure that the needs of your loved ones will be met after your passing. For more information
click here
.
Please note: LFS does not manage the investment of trust assets but works with your financial advisor, who continues to manage your assets while we administer your trust.
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ESTATE PLANNING FOR YOUNG ADULTS AND COLLEGE AGE: WHAT HAPPENS WHEN YOUR CHILD TURNS 18?
When your child turns 18 years of age, he is a bona-fide adult. This means that you as Mom or Dad cannot step in and make medical, legal, or financial decisions for him. And, if your child is in college, you are not even entitled to see his grades without his consent!
In order to protect your child, he should give you as parent all of the authority needed to work with third parties, particularly medical and educational institutions.
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How to Avoid a Disastrous Will or Trust Contest
Content provided by The Advisors Forum
Reviewed by James W. Garrett, Esq.
A will or trust contest can derail your final wishes, rapidly deplete your estate, and tear your loved ones apart. But with proper planning, you can prevent a disastrous will or trust contest. In this issue you will learn:
- What a will or trust contest is.
- Who can contest a will or trust.
- When a will or trust contest can be filed.
- The legal grounds for contesting a will or trust.
- How you can avoid a will or trust contest.
If you want to learn more about how you can protect your estate plan against a will or trust contest, please call our office for a consultation. However, if you are in the throes of a will or trust contest and need legal representation, please know that our firm has several experienced litigation lawyers who would be pleased to assist you.
What is a Will or Trust Contest?
A will or trust contest is a type of lawsuit that is filed to object to the validity of a will or trust.
If a will or trust is successfully contested (i.e., declared invalid), then the court "throws out" the will or trust. This essentially places your family in the position it would have been in without the challenged will or trust. This can be a disastrous outcome for your intended beneficiaries.
Who Can Contest a Will or Trust?
Only a person who has legal "standing" can file a lawsuit. Standing means that a party involved in a lawsuit will be personally affected by the outcome of the case.
The following may have standing to question the validity of a will or trust:
- Disinherited or disadvantaged heirs at law - Family members who would inherit or would inherit more under applicable state law if you failed to make a valid will or trust.
- Disinherited or disadvantaged beneficiaries -Beneficiaries (such as family, friends and charities) named or given a larger bequest in a prior will or trust.
Planning Tip: Not everyone in your life will have standing to challenge the validity of your estate plan. For example, even if a friend or business associate suspects that your will or trust is invalid, that individual will have no standing to contest it (unless as your heir at law or named in the will or trust).
When Can a Will or Trust Contest Be Filed?
While some states allow residents (and in some states nonresidents) to establish the validity of their estate plan before they die, Virginia does not. This pre-death validation process allows you to confirm your estate planning decisions while you are capable of defending them, which in turn will bar challenges to the plan after your death.
The time limit and procedures for contesting a will are determined by the law and rules of the state in which the probate case is filed. In Virginia normally you can contest a will within one year of the date of the order admitting the will to probate.
With regard to trusts, the time frame and procedures to contest them vary greatly from state to state. In some states, your heirs can be limited to as little as a few months to contest your trust, while in other states the time frame can be as long as a few years. In Virginia, there are three limitations periods (one, two and five years) depending on the nature of the claim being brought.
Planning Tip: It is important to understand the time limits for an interested party to file a will or trust contest, since missing the deadline may completely bar the party from filing one.
What Are the Legal Grounds for Contesting a Will or Trust?
In general there are four grounds to challenge the validity of your will or trust:
1. The will or trust was not signed as required by state law. Each state has specific laws that dictate how a will or trust must be signed in order for it to be legally valid (usually, such as in Virginia, wills not entirely in your handwriting must be signed in the presence of two witnesses who meet certain requirements).
2. The person making the will or trust lacked the necessary capacity. The capacity to make a will means that the person understands (a) the assets, (b) the family relationships, and (c) the legal effect of signing a will or trust. Each state has laws that set the threshold that must be overcome to prove that a person lacked sufficient mental capacity to sign a will. Some states apply the same standard to establishing a trust, but others, such as Virginia, apply the standard for capacity to make a contract (understand the purpose and effect of the contract).
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| We We would like to acknowledge Advisors Forum and WealthCounsel, LLC for their contribution to material included in this newsletter. The contents of this publication are for informational purposes only. Neither this publication nor the lawyers who authored it are rendering legal or other professional advice or opinions on specific facts or matters, nor does the distribution of this publication to any person constitute the establishment of an attorney-client relationship. Carrell Blanton Ferris & Associates, PLC assumes no liability in connection with the use of this publication.
© Carrell Blanton Ferris & Associates, PLC |
| CIRCULAR 230 DISCLOSURE: U.S. Treasury Department Regulations require that we advise you that unless otherwise expressly indicated, any federal tax advice contained herein is not intended or written to be used, and may not be used, for the purpose of (i) avoiding tax related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax related matters addressed herein.
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| Carrell Blanton Ferris & Associates, PLC
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