Guardianship Elements

This is a third post in a series on Guardianship.  For an introduction to the concept of Guardianship, please start here. For more information on Guardianship of a Minor, see post #2.

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If you've noticed that an elderly or ill loved one is increasingly unable to care for themselves, or perhaps you've spent the past 17 years raising a child with special-needs and see their 18th birthday on the horizon, you're likely wondering .... how do I go about getting one of these fancy Guardianships?

For a court to award a guardianship, there are two broad questions that must be answered.

1.  That a guardianship is needed.  In legal speak, we say that the ward is 'incompetent'.  
2.  That a particular person is qualified and the best person to be the guardian.  


Competence:

In a childhood guardianship (which occur when the 'typical' caregivers, parents, of a child between birth and 18 years old are unable to meet the child's needs) the child is incompetent "by virtue of his minority".  This means, we assume someone under the age of 18 can't meet the responsibilities of self-reliance and is in need of a qualified other to do so.

Adult Guardianship are different.  Here the presumption is that anyone over the age of 18 IS able to handle their own affairs.  Most states (including Arkansas) require an affidavit or testimony from a medical professional that includes a professional assessment of the abilities of the ward and the impact of any impairments on the ward's capability to meet the essential requirements for his or her health or safety (health care, food, shelter, clothing, and protection without which serious illness or serious physical injury will occur) or to manage his or her estate (i.e. take car of her money and finances).  

A Judge may require testimony and the submission of evidence to explore fully whether the proposed ward is able to make decisions and provide care for themselves and to what extent.  

Guardian Qualification

To be a Guardian in Arkansas, you must be:

• over the age of 18
• have not been convicted of a felony
• be of sound mind - meaning you can't need a Guardian yourself

In most cases, the individual seeing Guardianship is either a parent or child of the proposed ward.  In the case where an elderly or ill person is in need of a Guardian and has multiple children, the court must make a determination which is most qualified based on a number of considerations beyond this blogs scope.  If your child with special-needs is turning 18 and there isn't another parent to contest your desire to continue providing care into the child's adulthood, courts will likely grant Guardianship to you as the parent.  

Guardianship of a Minor

This is a second post in a series on Guardianship.  For an introduction to the concept of Guardianship, please start here.

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In contrast to Adult Guardianship, Minor Guardianship is necessary when the presumed responsible parties for a child is or becomes unable to meet the needs of caring for their child.  Generally this happens when parents face illness, addiction, or incarceration. 

Minor Guardianship is different from Adoption in that the legal parents of the child do not change.  This can be preferable for a number of legal and social reasons, but may not be in every family circumstance.  I'm happy to discuss these nuances if applicable one:one. 

To seek guardianship over a minor, courts will need to answer 3 questions -

1. Is the child incapacitated
• the answer here is always yes "by virtue of their minority" 
2. Does the child need a guardian?
• our legal system already has a presumption in place for caring for minor children - it is the natural or adoptive parent's job.  If a guardianship is being sought, the court will need to understand why the need to deviate from this norm.  
3. Who is the best suited to be guardian?
• Options I've seen in my practice include 
• siblings of the natural parents
• parents of the natural parents (so grandparents of the child)
• aunts/uncles of the natural parents - this happens more frequently when there are generational age gaps meaning the aunt/uncle are at a more 'typical' child-rearing age.
• members of the parent's religious or social community
• Note that who you might chose to care for your children in the case of future incapacity might not be the same as a court would choose ... plan ahead, write a will!  

Guardians of Your Galaxy

My spouse recently introduced me to the movie series "Guardians of the Galaxy".  I tend to be pretty up-to-date on changes in the law and pretty behind-the-times on popular culture.  As a result I assume you, my readers, are ahead of me and familiar with these movies and perhaps their underlying comic book series. In case this assumption is wrong, it follows the exploits of a team of misfits who serve to protect and defend the galaxy (aka: space) from any and all threats.

The Galaxy is a pretty big place!  

Legally, the job of a Guardian is similar.

At birth, culturally we assume that a new baby is not responsible for itself.  In most cases, pre-determined folks called parents are tasked with ensuring that the new baby is fed, clothed, receives medical care, and financially secure.  (Of course, there are exceptions which are outside the scope of this explanation).  This period of other-reliance legally lasts for 18 years and naturally ends at a person's 18th birthday.  From that point forward, the former-baby is now self-reliant.  At least in the eyes of the government.

For most people, this works well.  From birth to our 18th birthdays, we learn to manage money.  We learn to cook (or to go through the drive-through ... whichever).  We learn personal care and to bathe and toilet ourselves.  And come our 18th birthday ... we accept the responsibility .... of ourselves.

But for others, to varying degrees, the above milestones prove elusive.  For some people, turning 18 means being saddled with responsibilities which, due to physical illness or mental competency, they cannot meet.  At the other extreme, as some people age or experience onset of illness, their ability to competently meet these responsibilities erodes beyond a minimally necessary level.  Our government's solution to these situations - Adult Guardianship. 

A Guardianship is where a qualified other 'Guardian' assumes the responsibilities to care for, protect, and defend someone, called a 'Ward', who cannot care for them-selves.  Guardianships range widely in scope and duration.  Courts are obligated to narrowly define the guardianship so that the ward retains as much control and self-determination as their level of development will allow.

Stick around for my next post for information on Guardianship of a Minor, and later this year I'll look at some of the questions a court must answer to create an adult guardianship relationship.

Why All Parents Need a Will - not (only) a Trust

If you've spent much time around TrustWorthy Lawyer, you may have noticed that I believe strongly in the value of Revocable Living Trusts.  They are not, however, the best solution for everyone. 

In fact, in the legal world, few answers are universally applicable. 

This, however, is as close as I'll come to giving one that is ...

If you are a parent ... you need a will.  

One right you have in drafting a will is to tell the court who YOU want to have care of your children should you (and if relevant their other parent) die before they've reached adulthood or competency. 

Things you might consider in making this decision include your values, extended family relationships, and your religious beliefs.  Who will ensure that your children maintain their relationship with both (or more) sets of grandparents in your absence?  In contrast, if you are estranged from extended family, who will honor that situation and the reasons behind it?  There are few right answers to who you'd chose and why ... but if it were me?  I'd sure want to make those decisions myself and avoid a future court battle between surviving relatives or friends for the ability to influence the upbringing and formation of my children. 

Adding language to your will to address this important concern is well worth the investment. 

What if I don't have kids?

Estate planning for individuals who either can't or have chosen not to marry or have children poses some unique questions.

In my practice, clients often choose to leave their estate to siblings or nieces and/or nephews or to charity.  There is no wrong answer so long as the client is comfortable with the eventual plan.  The New York Times recent published an article addressing this issue:  Estate Planning for the Never-Married.

While NYT is specifically focusing on individuals who have never-married, the questions are very similar for families comprised of two spouses.  In encourage you to click through and think through the issues raised in this timely article.

As always, feel free to contact my office should you have any questions or would like to discuss further.

Why a corporation might be your most valuable Fashion Accessory

What does it take to start a business - Customers!

That is it.  So long as someone is willing to pay you for a product or service you offer; you have a business.  That lemon-aid stand you started when you were 10 - just as real and legal of a business as my law firm.  Well ... mostly legal, i'm guessing there may have been some health-code violations at play, but that is outside the scope of this blog post!

With starting your own business so easy and cheap, why in the would would you want to pay your friendly neighborhood lawyer to do "Business Formation" work?  

Well, because Business Formation work is a misnomer.  What is truly at play here is ENTITY formation.  And entity formation is IMPORTANT!

As a Business or Asset owner, one of the scariest parts of the law allows creditors (those customers injured or angry) to seek your PERSONAL assets should your business not be able to cover their damages.  This means, not only could you lose your investment or the company bank account .... but also your families home and vehicles.

And the Risk is Real!

If you own a retail establishment, someone could slip and fall and be injured in your store, then suing you for medical bills, pain, suffering, lost wages and more.  Likewise, rental property carries with it the risk of visitors becoming physically injured on site.

Entrepreneurship also carries financial and contractual risks.  You might be sued for money damages in a contract dispute due to a late delivery.  Perhaps you are considering investing in real estate in a promising area that becomes a flop?

Given these facts, why would anyone go forward and take on the risk?

Because the law also provides an option to protect your personal assets.  That option is the Corporation!  Think of the corporation (whether that is C-Corp, S-Corp. or LLC) as an amazing article of protective clothing specially designed to protect you from the risks of business ownership.

The benefit you obtain from incorporating is called "Limited Liability" and we view the corporation as a veil! A Corporate Veil. Picture an individual wearing a veil (perhaps a bride in a trendy birdcage?)  The veil serves to hide its wearer.  Likewise, a disgruntled customer/supplier/third party cannot "see" the owners behind the corporation.

Limited Liability says that the Corporation/Business/Company is a SEPARATE entity from its owners (that's you!).  As a Separate entity, the Business is solely responsible for it's own debts and obligations.  The owners are not.  The veil is in place to shield you.

Conclusion - Explore Entity Formation not because you need help starting a business ... but because you need help mitigating risk! 

Each state has unique laws in place outlining the requirements to set up a corporation as the entity which operates a business and to maintain healthy "separateness" between the owners and that corporation.  (If you fail to maintain separateness, the Veil can be Pierced revealing the owners to personal risk again).  These details are far too nuisanced for an information blog, however are important to explore as you begin this exciting journey as a Business Owner!

What if I change my mind!?

Life happens.

Circumstances change.

Today you may be married with small children.

In the blink of an eye, those children may be married with their own babies and you may be looking at funding long-term care.

The estate plan that is 100% aligned with your life as a young family when you are 35 may well need adjusting by the time you retire in your 60s.

THAT IS A-OK!

Before we begin, a bit of a vocabulary lesson:

Codicil: an addition or supplement that explains, modifies, or revokes a will or part of one.

Revoke: put an end to the validity or operation of a previously executed Will or Trust.  

Should you find yourself needing to change your end-of-life wishes you have 3 basic options.  (But as you'll see, only two are very wise).

Option 1:  Revoke your existing Will or Trust.  Period.

Pro: Likely the cheapest option.  

Con: Leaves you at the whims of intestate succession and offers no medicaid planning. Essentially reverts your planning to before you ever executed a will or Trust.  

Option 2: Execute a Codicil or Amend your Trust

Pro: Still cheaper than Option 3.  Aligns your estate plan with your current wishes. 

Con: Since you now have two valid documents, if not done well, this can lead to confusion.  How exactly do these (the initial Will and the new Codicil) work together?  Exactly which portions of the initial will are now valid and which have been overridden?  Confused?  Exactly! 

Option 3: Revoke previous Will or Trust and redraft

Pro: Eliminates confusion inherent in having two operating documents.

Con: Most expensive due to time necessary for complete redrafting - this is mostly at issue with a Trust.  Redrafting a will isn't as significant of an undertaking.  

Conclusion - Option 1 is almost never going to be a wise decision.  The pro v. con calculus between options 2 and three really depends on the specifics of your case and whether we are dealing with a Trust or a Will.  Contact your friendly-neighborhood-attorney to discuss the specifics of your case! 

Is a Trust really for Me?

Often clients approach me expressing an interest in having a will drafted so that they can make plans for the eventual distribution of their assets upon death.  Often one of the first questions I ask is:

"Have you considered moving your assets into a Trust and allowing for their management and eventual distribution though this method?"

To which they reply more often than not ....

"Aren't trusts just for exceptionally wealthy people?"

My answer is simply "NO!"

For the majority of my clients, a Revocable Living Trust is truly the best option when it comes to end of life asset management.

Benefits of a Revocable Living Trust include the following:

1. Avoiding Probate (costs, delays, publicity)
2. Maintaining Privacy of family assets and distribution allocations.  
3. Greater control over the use of family assets
4. Ability to ensure the financial security of dependents that also rely on SSI or other need-based government benefits.
5. Protection of a spend-thrift beneficiary from their own financial mis-management. 
6. Management of grantors assets in the case of incapacity prior to death.

For individuals or couples with high net worth (currently somewhere above 5.3M per person), more complicated tax planning is wise to avoid estate taxation.  This however, is a blog post for another day.

Can't I write my own will?

One of the joys of living in 2015 (and counting) is the easy availability of free information on the internet.  Never before have YOU the consumer had such an ability to do-it-yourself.  Options include:

Form-books, LegalZoom, Software programs, as your friendly local lawyers blog!

And for some people these should work just fine.  For instance, if you are married to your first spouse, have a relatively small estate (no tax concerns), and only joint biological typically developing responsible children (that's quite a few adjectives right!) who you want to inherent everything, the forms are likely for you.

Maybe.

And here's the challenge - I wouldn't know without talking through your assets and family situation with you.  (remember the bottom of my website .... "This is my Blog. This is not my Office. If you need legal advise, come to the latter."  )


And for the cost of a few hours of an attorneys time to discuss your situation and advise you on whether you really NEED them to draft your will the attorney could just as easily have it drafted.

Now, that disclaimer aside here are some situations where you probably should not consider going the do-it-yourself route:

1. You or your spouse have been married more than once.
2. You or your spouse have children from a previous marriage or outside of wedlock
3. You have minor children and don't want them to receive a lump sum payment when they turn 18.
4. You have minor children and don't want their other parent having access to and control of the children's inheritance.
5. You have desired beneficiaries that are in debt.
6. You have natural beneficiaries who might fight to get access to part of your estate.
7. You have desired beneficiaries that are developmentally challenged.
8. You want to disinherit a child/children.
9. You don't know 100% that any of the above situations will not be the case at some point in the future.

Step-Up and Carry-Over What?!

I'm excited you're back to continue our geeking out discussion of Basis and its implications on your estate plan!  If you missed the first post on these topics, please head on over and get the foundation here!

In estate planning we look at two primary methods of gifting property.

1. Life-time Gifts
2. Gifts by operation of death

Each of these is treated differently by the IRS for Basis purposes.  Specifically let's consider any gift from the point of view of the recipient's Basis.  First, what investment does that recipient have in the property?  $0.00, right?  Which would make their presumed basis .... $0.00.  (Spoiler - the recipient's Basis isn't actually going to be zero, but we're not there yet!) 

The IRS who defines Basis for tax purposes hasn't taken quite THAT draconian of a viewpoint however, and at worst allows that recipient of a gift a "Carry-Over" Basis.  At best, the recipient receives a "Step-Up" Basis.  

1. Carry-Over Basis - The recipient takes over the basis that the donor had in the property.  So if Grandma and Grandpa give you the family farm that they purchased in 1940 for $100 an acre? .... your new basis is $100 an acre.
2. Step-Up Basis - The recipient takes as his basis the fair market value (fmv) of the property at the time of the gift.  So if you receive that same family farm and the current fmv is $15,000 an acre, your basis is now the $15,000 an acre.  

I want to now presume that a few years after having received a particular gift the recipient decides to sell the property.  At that point, the US (and likely state) government say .... CAPITAL GAIN ... give me, give me!  Capital Gain taxes are levied on the difference in value of property between the owners basis and the sales price.  

In a situation where Grandma and Grandpa purchased land 75 years ago for $100 an acre, they are at a significant risk of Capital Gain tax liability if they now sell the property for it's fmv of $15,000.  

The gain would be $15,000 - $100 = $14,900 per acre.  

Assuming a 100 acre farm, this means a total taxable gain of $1,490,000!!!!!

OUCH!!!

Well Grandma and Grandpa have no interest in loosing up to 20% of the cash they'd receive from the sale of this property to their friendly neighborhood federal government ... so they come up with a plan .... to GIVE that land to YOU and thus avoid the pesky capital gain.  After all, the appreciation in value occurred while they were the owners.  The government couldn't possibly expect the recipient of gifted property to pay taxes on it's value.

WRONG!

Here is where the recipient's basis becomes critical.  

If the recipient can get a step-up basis ... they're good to go!  Right?  Their basis will be equal to the fmv resulting in no gain and no tax.  

If the recipient is stuck with a carry-over basis ... trouble!  The recipient will be in the exact situation as the donors (Grandma and Grandpa) were.  

So, here is when each applies - 

When a gift is made during the donor's life - (an inter-vivos gift) - the recipient takes a carry-over basis in the property.

When a gift is made a a result of the donor's death - the recipient gets a step-up bases.  

Lesson to be learned for estate planning -

if you own property that has appreciated in value significantly, select those pieces of property to pass via your will or trust.

Use inter-vivos or lifetime gifting to remove assets which have not or do not appreciate in value from your estate (such as cash!).

Remember though, gift wisely and subject to the annual gift tax exclusion! 

Back to Basis

In my prior career-life I was a CPA. Today we are going to indulge a bit of my inner finance-geek in our discussion of Basis and how it can relate to your estate plan.  

I recently asked one of my non-accountant friends to define Basis for me and received the following reply:

Basis is like the foundation – Because the basis of an argument would be the foundation, right!?  

Well ... somewhat.  

In accounting, Basis measures you (the owner)’s investment in a piece of property.  

For example, if I purchase a piece of land (in dream world) for $100; my basis in that property is …

…..

…..

…..

$100.

Now let’s say I purchase a piece of land for $100 and then spend an additional $20 adding a fence around a portion.  Now my basis in the land would be $120.  

If, instead, I purchased land for $120 that already had a fence in place, but that fence was somewhat in disrepair, and I spend $10 to repair the fence … my basis is …. $120.  Repair costs do not get added to your basis.  

Only improvements add to basis.  

There are far more complicated rules for calculating basis in stock that has perhaps split or paid dividends and been reinvested.  Or the basis in a partnership interest where the owner may have contributed both cash and equipment and time to the business, and have removed income or dividends from that business. Your friendly neighborhood CPA can help you sort out these and other unique circumstances.  

For your estate planning purposes, however the general rule is important to know - 

Basis is the value that you have invested in a piece of property (real, investment, or otherwise)

Check back next post for an explanation of the two types of basis in non-purchased assets.  

Common Probate Costs

Here are a few of the expenses you can expect when probating a will or intestate estate:

• Bond - to ensure executor doesn't abscond with the assets
• Publication of Notice - 
• Court Costs - 
• Service of Notice to Heirs of Intestacy
• Attorneys Fees - Hourly, Fixed, or Percentage of Estate
• Accounting and Valuation costs

The Engagement Letter

This is the first post in a series aimed at explaining a bit about the process of hiring and working with an attorney or law firm.  For those of you who have had an attorney on retainer since you were a child, feel free to move along.  Otherwise, lets get started.

Before your new attorney begins work on your case/document/issue they will likely present you with an Engagement Letter to sign and return.  This letter becomes the contract outlining the rights and responsibilities of each side of the agreement.

A typical engagement letter will include provision such as:

1. what case or work-product the attorney is being engaged
1. are you hiring him to draft a simple will or to draft a complex multi-generational estate plan?
2. are you hiring him to represent you at a probable cause hearing only or for the entire case including appeal if necessary?
2. the fee arrangement
1. contingent - he gets paid when he wins your case (not allowed in criminal cases)
2. hourly - Price per hour?  At what intervals will you be invoiced?  At what intervals will time be kept (you don't want an attorney rounding up a 4 minute phone call to .5 hour, do you?)?  
3. Retainer Maintenance Requirements
3. expectations of communication
1. How often should you expect to hear from the attorney
2. how quickly can the attorney expect you to provide him with needed documents or data?
4. Who is the Client?
1. You as an individual?
2. A corporate entity you own?
3. Your minor child despite you paying the bills?
5. Who you are hiring
1. A particular attorney?
2. The law firm as a whole?
6. Other issues specific to particular types of legal engagements.  

When presented with an Engagement Letter, be sure to review it and ensure it agrees with your understanding of your rights and responsibilities for the representation.  Discuss any uncertainties prior to entering into the Attorney-Client relationship.

Homeschooling in Arkansas

For my readers that are planning to homeschool your kids during the upcoming school year, the deadline for notifying your superintendent of your plans is quickly approaching.

The Arkansas government has a form available online designed for making this notification.  This can be accessed here.

Please note that if this is your first time electing to homeschool your child, the notification must be delivered to your superintendent in person.

If you have questions about the legality and requirements to homeschool in the state of Arkansas, HSLDA has put together a fantastic overview which can be accessed here.  If you have questions, feel free to contact your local attorney for guidance.

Bar Exam Prayers

Today, thousands of recent and not-so-recent law school graduates begin to sit for the Bar Exam.


Some have prepared under ideal circumstances, studying the recommended 12 or so hours per day for the past two months in uninterrupted peace.

BarBri

Others have balanced children and spouses and jobs while making time to prepare late into the night as best they are able.  

Honestly, a few others haven't taken this season of preparation seriously.  

All covet your prayers as they are facing a grueling 2-3 days of examination.  Please join me and pray that the candidates will be successful in maintaining focus this week and having recall over the materials they have studied. 

And so it begins for nervous future world-changers!

Further, pray that God continues to raise up scholars and practitioners that will see to use their education and capabilities to honor him and "Speak up and judge fairly; defend the rights of the poor and needy."  (Proverbs 31:9)  May they use their training to advocate for the least of these!  

Pat Robertson, founder of Regent University School of Law ~ 

Special/Supplemental Needs Trust

Individuals living with a disability often need to avail themselves to public assistance at some point in time.  In order to qualify for this assistance, guidelines require that the individual first be impoverished. The threshold at which someone no longer qualifies for assistance is around $2K-$3K.

Unfortunately, while public assistance may provide certain necessities, it does not allow for the quality of life many of us would like our loved-ones or ourselves to enjoy.  A Special or Supplemental Needs trust can help bridge that gap.

See below a sample of items which could be purchased by a trustee with assets held in trust:

1. medial equipment or treatment not covered by Medicaid
2. Adaptive equipment not covered by Medicaid
3. cell phone and service
4. Hobby supplies and fees
5. tuition and school supplies if no other funding source exists
6. prepaid funeral expenses
7. computer equipment
8. personal care items
9. vacations
10. pet/pet supplies

Things the trustee cannot purchase with trust assets:

1. gift for people that are not the beneficiary
2. Beneficiary’s basic needs, such as food, shelter, clothing and medical care.
3. cash payments directly to the beneficiary

This type of trust can either be self-funded or funded by someone else.  If it is self funded, it is called a Special Needs Trust and if it is funded by someone else, a Supplemental Needs Trust.  The primary difference is that at death, any funds left in a Special Needs trust go to the state or agency to reimburse for care provided.  In a supplemental needs trust, any excess goes to a remainder-man beneficiary defined by the grantor.

Step Parent Adoption

Many clients choose to purse a Step-Parent Adoption to legally confirm the family unit that is already operating in the home.

Arkansas makes the process of adopting your step child a bit easier than a non-biological adoption.  This type of case is initiated by filing a petition with your county court and then awaiting a hearing before the judge.  Your petition must detail certain jurisdictional and substantive requirements and essentially tells the judge what you want (the adoption, perhaps a name change for the child) and why you think he is the one that should grant these things.

With all legal proceedings involving children, the decision will be made by the judge as to what is in the "Best Interest of the Child".  This standard is, however, quite vague and numerous statutes as well as cases interpret and provide color which can assist your attorney is best presenting your case as in your child's best interest.

There are two basic types of Step Parent Adoption -

• Contested - where the non-custodial natural parent does not consent
• Uncontested - where the non-custodial natural parent consents.

The former will take a bit more time and cost you more money in lawyer fees as well as costs.  You must prove to the court either that the presumed natural father is not in fact the legal father of the child per your state's laws or that non-custodial parent's rights should be terminated. There are a number of causes which a court could rely upon in choosing to terminate a parents rights and grant the adoption petition.  Your adoption attorney can discuss your situation and if any are applicable.  

Medicaid Planning

My goal is to live independently until I die.

I never hope to need long-term care in a nursing home or assisted living facility.  Unfortunately, few people are able to care for themselves through their older years.  Many are faced with the need for assistance and many caught off guard by the expense that may be necessary to obtain the assistance needed.

Medicaid is often used to provide a source of funding to ensure that you receive the care needed.

Did you know that applicants to Medicaid are only allowed to have approximately $2,000 in non-qualified assets?

Further, any gifts you make within 5 years of applying for Medicaid are subject to a look-back provision which can make them count against your asset allowance!

Your Medicaid planning attorney can help you plan such that you can protect your assets while best qualifying for benefits.

Estate Tax Planning

Last week we looked at a few benefits of Revocable Living Trusts that are applicable to individuals or couples of most any net worth.

Today's post is directed to individuals whose net estate is anticipated to be above ~$5.3M as of 2014.  This number is known as the estate tax exemption and is available for any given year on the IRS's website.  In the past 10 years, this exemption has been as low as $1.5M, so depending on what decisions congress makes in upcoming sessions, the need for estate tax planning may increasingly apply to individuals or couples with mid-range estates.

There are a variety of irrevocable trust documents which can be used to plan one's estate to legally minimize estate tax liability.  The basic goal is to systematically remove assets from your taxable estate prior to death while not inhibiting your ability to provide for needs and quality of life in the mean time.

• By making use of the annual gift exclusion ($14,000 per donor per recipient in 2014), you may be able to shift ownership of assets without incurring gift or estate taxation on the transfer.  A married couple with 2 married children and 4 grand children would be able to gift a total of $168,000 per year tax free. 

• With enough advance planning, wise transfers of assets that are likely to appreciate in value into a GRAT or Granter Retained Annuity Trust can shield your estate from the inclusion of the appreciated value.

• If you have a particular interest in leaving a portion of your estate to one or more charitable organizations, unique trust instruments such as the CRAT (charitable remainder annuity trust) or the CRUT (charitable remainder unitrust) make doing so tax advantageous.  

An experienced Estate Tax attorney can help you analyze which assets you have that might be best suited for inclusion in an irrevocable living trust as well as what trust instruments might help serve your individual interests.

Will/Trust Considerations

So you've made an appointment to meet with your attorney regarding your Estate Plan?  Here are a few things to consider when determining your desired distributions....

1. What do you own?
1. This can include real estate, investments, cash, jewelry, guns, artwork, life insurance policies, the family business, and an almost unlimited list of other assets.
2. How do you own these items?
1. Joint Tenancy
2. Tenants in Common
3. Tenancy by the Entirety
4. Marital Property
5. Separate (non-marital property)
3. Do you have minor children?
1. If so, who would care for them in your absence?
2. Do you feel comfortable with them (or any other beneficiary) receiving the full payout of inherited money when they turn 18?  
4. Who should get each of your assets in #1 above?
5. What happens if a desired beneficiary 
1. is dependent on governmental need-based benefits and will be disqualified by an inheritance?
2. has proven irresponsible with money and would not have the skills or sophistication to manage an inheritance?
3. Is indebted and would loose any inheritance to debtors?
4. Is a minor whose caregiver you would not trust with the assets? 
6. When should beneficiaries receive their inheritance?
1. When they turn 18?
2. 25?
3. Graduate College?
4. Get Married?
5. Some other point in time?
7. Do you anticipate relying on Medicaid at some point before your death?  
8. Who do you trust?
1. to care for your minor children (see #3.1)
2. To be responsible for distributing your assets according to your expressed wishes?
3. To manage your assets should you become incapacitated before death (in the case of an RLT)

Feel free to add any additional thoughts in the comments!