All posts by Dennis Astill

Why Does an Estate Need to File an Income Tax Return?

March 6, 2015 Dennis Astill Leave a comment

We have many clients ask us why an estate must file an income tax return. The quick answer requires you to understand a simple concept that may come as a surprise. When someone dies, the assets they own create an “estate” which may be made up of income producing property and non-income producing property. The IRS has created rules which state that the estate is now a new, separate taxable entity. It is possible for an estate to receive income following an individual’s death. Someone has to pay taxes on that income so the estate has to file an income tax return.

Common examples include income from a business, rental property, dividends, or even the interest that accrues on the deceased’s checking or bank accounts. All of these are considered to be income from the Internal Revenue Service (IRS). You should also understand that an estate’s income taxes are different from estate taxes, which are based upon the value of the estate.

If an estate receives income after the individual dies and before the estate property has been distributed, it must be reported to the IRS. The appropriate form for reporting an estate’s income is Fiduciary Income Tax Return or Form 1041. If a beneficiary inherits an asset directly from the deceased, the estate does not have to report income on that asset. The beneficiary reports income from the date of death. For example if you inherited General Motors stock because of joint ownership, any dividends paid from the date of death must be reported by you.

In addition, if the estate earns income on certain assets, but then makes distributions to beneficiaries, the estate reports the income, but the beneficiaries may have to report it on their individual income tax returns and pay tax on the income.

Is it possible to avoid the fiduciary income tax? With our help and careful planning, it may not be necessary for a fiduciary income tax return to be filed. If all of the estate assets are quickly transferred to your beneficiaries, the estate will likely not hold the property long enough to earn enough income to require filing of a return. For example, assets that are held in a trust are generally distributed quickly, which can help minimize tax consequences. In contrast, if the probate process is delayed by family disputes or legal issues, the distribution of the estate assets can be delayed for months, even longer! As a result, the estate ends up holding the assets for a period of time, the estate receives income, and that results in the need for the estate to file an income tax return.

We can help trustees or executors understand the tax reporting rules and avoid tax reporting under the right circumstances.

The Astill Law Office has provided high quality legal services for over 30 years. We specialize in wills, trusts, estate planning, and asset protection. If you have any questions about creating a Trust, Will, or estate planning in general, contact The Astill Law Office at 801-438-8698.

Estate Planning

Should you Use an Online Estate Auction?

March 5, 2015 Dennis Astill Leave a comment

Sadly, when a loved one passes away, it is common for family members to start fighting over the property the deceased left behind. Greed can make people do and say things they otherwise would not do or say. While we all hope our family members will be able to resolve disputes on their own, that often is not the case, especially if you leave a substantial estate with numerous assets to be distributed. In fact, leaving a Will that instructs your loved ones to divide your property in equal shares can also cause issues. How do you equally divide a family heirloom that all of the relatives want?

Because it is often impossible to divide your belongings equally, your loved ones can turn against each other quickly. If you don’t know how to divide your assets in your estate plan, one option for making sure your relatives all have the opportunity to inherit the treasures they want, you can leave instructions to conduct an online auction. For example, there are websites that allow your estate manager to take pictures of the estate assets and place them for sale on a website auction. Using this type of strategy for distributing your assets can ensure that each relative has an equal opportunity to inherit the items they want from your estate. It is an equitable process because each participant is given an equal number of points and whoever bids the most points on an item will “win” it. Your relatives will spend their allotted points on the items that mean the most to them. Once the auction is over, the estate manager can distribute the property of the individuals who won the items.

We have used this same process for many years without the internet, but the internet has made this a much more efficient process.

While the above may seem like an unusual way to distribute your estate, it can be effective for assisting families in avoiding conflict. There is a lot of flexibility in creating an estate plan. Whatever your circumstances, we can help you find a solution that helps not only protects your plan, but keeps the peace.

Estate Planning

Can Probate be a Good Thing?

March 4, 2015 Dennis Astill Leave a comment

You have probably heard that you should avoid probate at all costs. Generally speaking, this is good advice. The probate process can be time-consuming and expensive. It also puts your private affairs out into the public. However, there are certain circumstances where allowing a portion of your estate to go through probate can be helpful.

If there are numerous creditors with claims against the deceased’s estate, probate can be beneficial. The probate process allows you to set a strict deadline for creditors to assert their claims against assets being passed through the deceased’s Will. All creditors who fail to meet the deadline may be barred from seeking to recover the debt owed to them.

If you have created a trust, the assets transferred into the trust do not go through probate. As a result, privacy is maintained. That does not mean creditors can be avoided, but it does create hurdles for them to overcome. Further, if you have a trust, even if some assets have to pass through probate, with a “pour-over Will“, the probate process is much less involved. Without question, trust administration is faster than probate, with less restrictions.

You may want to consider creating a trust to protect the majority of your property, while also leaving certain assets to pass through the Will and through probate. This strategy requires significant planning if you are considering asset protection and avoidance of creditor claims. The Astill Law Office has provided high quality legal services for over 30 years. We specialize in wills, trusts, estate planning, and asset protection. If you have any questions about creating a Trust, Will, or estate planning in general, contact The Astill Law Office at 801-438-8698.

Estate Planning

Why do we Avoid Estate Planning?

March 3, 2015 Dennis Astill Leave a comment

Most people believe that estate planning is important and they have every intention of doing it, yet they continue to procrastinate creating a plan. While no two individuals are the same, below are a few of the most common reasons people delay establishing their estate plan:

Fear of Death

Most people do not like to think about (or talk about) their own death. Estate planning forces you to think about how to provide for your loved ones after you are gone. You must make decisions on how to distribute your assets and who to appoint to be the guardian of your minor children. These types of decisions are uncomfortable and difficult. However, dying without providing for your loved ones is even worse. While discussing your estate plan can be awkward, you might be surprised at the peace of mind you feel once the task is done. Also, it will show your family members that you care enough to plan for their future.

Reduce Stress

If you have strained relationships with some of your family members, it can add tension to the estate planning process. You may have specific goals that you want to accomplish with your estate plan, but your relatives may be placing pressure on you to do otherwise. It is important to work with an experienced attorney who can help you create the plan you want that will achieve your goals. Additionally, you should remember that this is your estate plan. Be honest with your loved ones and listen to what they have to say, but ultimately it is your decision on how to handle your estate.

Loss of Control over Finances

Some people incorrectly believe that by creating an estate plan they will lose control over their money and/or their property. Ironically, by establishing a comprehensive estate plan, it provides you with financial security and you are better able to maintain control. Without proper planning, if someone becomes incapacitated, the probate courts take control and you lose all control. We can help you protect your assets from creditors, provide for your family’s future, and create strategies for reducing the amount of taxes your estate must pay.

If you are ready to set aside your fears and take the first step in creating an estate plan, call us. The Astill Law Office has provided high quality legal services for over 30 years. We specialize in wills, trusts, estate planning, and asset protection. If you have any questions about creating a Trust, Will, or estate planning in general, contact The Astill Law Office at 801-438-8698.

Estate Planning

When can a Decedent’s Last Will be Challenged?

March 2, 2015 Dennis Astill Leave a comment

Challenging a decedent’s Last Will and Testament is a serious matter. When you object to a Will, you are questioning the validity of it. Most objections to a Will are filed by relatives that are angry because they were not named as a beneficiary and they assume it was a mistake. Another common scenario is when a spouse objects to a Will that was drafted before the marriage and does not name him or her as a beneficiary.

There are numerous reasons a Will can be held invalid. Below are a few examples of the most common grounds for a Court to render a Will unenforceable:

Lack of Mental Capacity. The law requires a testator to have the mental capacity to understand the nature and amount of his or her estate. The testator must comprehend who has been named as the beneficiaries and how the Will distributes his or her property. If it can be proven that the deceased lacked adequate mental capacity, the Will may be held invalid.

Undue Influence. A Will must be created and signed freely and without coercion by third-parties. A Will executed under duress is invalid.

Mistake or Fraud. If a Will was signed by the testator based upon a misunderstanding of the contents of the Will or if there is actual fraud involved, the Will is unenforceable.

Revoked Will. A Will that has been previously revoked by the testator cannot be enforced.

Failure to Meet Requirements. Every state has specific requirements that must be met in order for the Will to be valid. If it can be proven that one of these requirements was not met, the Will may be successfully challenged.

Will challenges can be expensive and damaging to your family relationships. Consideration should be given to strategies to defeat a claim in advance. If incapacity is a concern, having a Doctor or medical professional confirm legal capacity is advisable. If a testator is making a gift to a caregiver, special care should be given to avoid claims of undue influence. Finally, proper drafting will avoid most challenges. Avoid DIY (do it yourself) Wills or you are almost certain to open the door to claims. If you want to ensure that your Will cannot be successfully challenged, we can help. Additionally, if you are interested in learning whether or not you should object to a loved one’s Will, contact our office.

Estate Planning

What You Can Learn From Estate Planning Mistakes Made by Celebrities

February 24, 2015 Dennis Astill Leave a comment

Most people assume that the rich and famous have bullet-proof estate plans to protect their expansive estates. The reality, however, is that celebrities make the same estate planning mistakes as everyone else.

Below are some of the mistakes celebrities have made and that you should avoid, including failing to:

Appoint proper guardians. When choosing a guardian for your children, it is important to take a wide variety of factors into consideration. For example, Michael Jackson appointed his elderly mother to serve as the guardian of his children. Diana Ross was named as a successor guardian. However, due to his mother’s age, it left questions about what would happen if Mrs. Jackson died before his youngest child becomes an adult or if she became unable to care for the children. When choosing a guardian, you should consider whether the individual will be able to care for your minor children until they reach at least 18 years of age.
Update your estate plan. As your life progresses, your circumstances can change. Certain events require you to update your estate plan, such as births, deaths, divorce, marriage and other changes that your family changes. Failure to update your estate plan after one of these events can lead to unintended consequences. You should look at these concerns at least annually to consider changes.
Organize finances. The rich and famous typically have complicated finances that include a variety of accounts, insurance policies, and numerous valuable assets which often include business investments. Your financial situation may also be complex, even if it is to a lesser extent than that of a celebrity. Whether your estate is big or small, it is important that you organize your financial records. The more difficult it is for your loved ones to locate your assets, the hard the administration of your estate will be for them.
Avoid taxes. It is important to consult with an estate planning attorney regarding how to prepare your estate to avoid unnecessary taxation. Again, Michael Jackson provides an example of an estate that was subjected to costly taxes, among other problems. If he had created a trust, created a limited liability company to hold assets and/or purchased a large life insurance policy, he could have minimized the taxes against his estate and solve many other problems.

One of the most important steps you can take in avoiding common estate planning mistakes is to work with a knowledgeable professional you can trust. The Astill Law Office has provided high quality legal services for over 30 years. We specialize in wills, trusts, estate planning, and asset protection. If you have any questions about creating a Trust, Will, or estate planning in general, contact The Astill Law Office at 801-438-8698.

Estate Planning, Uncategorized

Should You Include Your Pets in Your Estate Plan?

February 23, 2015 Dennis Astill Leave a comment

Most people think about their spouse, children and friends when they are creating their estate plan. However, another loved one that you may want to consider is your pet. If you want to plan for the maintenance and care of your dog, cat or other animal after you are gone, there are several options to consider. You can appoint somebody to take care of your pet, but you may also want to financially provide for your animal’s care.

To plan for your pet, you need to work with a lawyer who is experienced in this area. An animal is not legally allowed to own money or assets, so you cannot make a direct transfer to your pet. However, you are allowed to appoint another person to take possession of your pet upon your death and you may leave money with your request that it be used to pay for the care of the animal. It is essential that you understand that unless you leave the money in trust, this individual may be morally obligated to honor your wishes and use the funds to care for your pet, but this person is not legally obligated to do so. You should also understand that unless you provide specific instructions for any remaining money left after your pet dies, the individual will be allowed to keep it. If the option of leaving it to an individual, and trusting them to do the right thing does not seem satisfactory to you, a pet trust may be something to consider. Most states recognize trusts created for the benefit of animals as being valid, but you should confer with an experienced local estate planning attorney to understand what your jurisdiction allows.

A pet trust can allow you to dictate how the money can be used for taking care of your pet, including:

Appointing the person to take care of your pet
Appointing a successor to take your pet if your first appointee is unable to do so
Appointing the individual to manage the pet trust
Outlining they type of care your pet requires
Leaving instructions for what to do with any remaining money after your pet dies

If you are interested in learning more about pet trusts or you have questions regarding other estate planning matter, contact our attorneys to schedule an appointment. The Astill Law Office has provided high quality legal services for over 30 years. We specialize in wills, trusts, estate planning, and asset protection. If you have any questions about creating a Trust, Will, or estate planning in general, contact The Astill Law Office at 801-438-8698.

Estate Planning

An Elder Law Attorney’s Tips for Interviewing a Nursing Home

February 20, 2015 Dennis Astill Leave a comment

Looking for the right nursing home for yourself or a loved one can be a complicated task. It is an important decision that should only be made after conducting due diligence. You should ask your friends and family for references, as well as look online for feedback. You should also visit and interview the staff at more than one facility. Below are some of the questions you should consider asking:

What is involved in the admission process? Are there specific financial requirements?
Is your nursing home certified by Medicaid and Medicare?
What is included in the monthly fee? What are additional items that may be billed?
How many staff members are on duty during each shift?
How are staff members trained and screened?
Are there extra-curricular or educational activities for the residents to attend?
Do residents have access to transportation for errands or non-emergency medical services?
Does the facility have a physician on the premises?
Are residents allowed to go outside? If so, is the outdoor area safe?
Will the resident have a roommate or share a bathroom with others?
How are meals served? You may want to sample the food for yourself.
How often will a resident’s plan of care by reviewed and/or updated?
Can you observe your loved one by video to make sure they are not being abused?
How do they control visitors of your family member?

The above list is not exhaustive, but it gives you an idea of some of the areas you should cover with each facility you tour. It is also important to select a living facility that is close to friends and family because having visitors is important to a resident’s well-being.

If you have questions regarding elder law matters, contact our knowledgeable attorneys for an initial consultation. The Astill Law Office has provided high quality legal services for over 30 years. We specialize in wills, trusts, estate planning, and asset protection. If you have any questions about creating a Trust, Will, or estate planning in general, contact The Astill Law Office at 801-438-8698.

Estate Planning

Should you Pre-Plan Your Funeral?

February 19, 2015 Dennis Astill Leave a comment

Even if you are a planner in all areas of your life, you are probably like most people and you do not like to think about dying. However, by pre-planning your funeral, you can remove a significant burden from your family. Planning a funeral right after losing somebody is stressful and can feel overwhelming. If you have already made the decisions for your family, they not only avoid the burden, but they also have the peace of knowing the plans are what you wanted.

What should be included in your pre-planned funeral arrangements? There is flexibility in creating your plan so you can select where you want to be buried, songs you want to play at the ceremony, speakers, topics, poems or verses to be read, the time alloted, the type of celebration, or anything else that is important to you.

Should I pre-pay for my funeral? It is usually not recommended that you pre-pay for your services. If the funeral home should file bankruptcy or otherwise close its business, you may lose your money; or terms and conditions sometimes change, making it different than what was expected. It is much safer to create a trust account, designated bank account, specifically designated insurance policy or other similar way to set aside the funds to pay for your funeral expenses when the time comes.

It is worth mentioning that if you have created your estate plan, your documents probably include a provision for paying your final expenses, which include the cost of your burial. Even so, you should still leave instructions regarding the final disposition of your body. For example, you should specify whether you want to be buried or cremated, as well as whether you want to be an organ donor.

If you are interested in creating an estate plan or learning more about pre-planning your funeral, contact us to schedule your appointment. The Astill Law Office has provided high quality legal services for over 30 years. We specialize in wills, trusts, estate planning, and asset protection. If you have any questions about creating a Trust, Will, or estate planning in general, contact The Astill Law Office at 801-438-8698.

Estate Planning

The Importance of Medicaid Planning

February 18, 2015 Dennis Astill Leave a comment

If you are thinking about your “golden years” and you are worried about ending up in a nursing home and how you will pay for it, it is time to begin Medicaid planning. We can help you create a strategy to protect your assets and to reduce the financial strain of nursing home care. Let us help you obtain the peace of mind knowing that your medical needs are going to be met without depleting your entire estate.

There are a variety of ways people pay for long-term care, including private funds, insurance, veteran’s benefits, Medicaid and Medicare. Individuals can benefit from being qualified for Medicaid because it pays all the expenses associated with qualified nursing homes, assisted living and other long-term care facilities. However, to qualify for Medicaid, you must meet strict requirements, including diminishing most of your financial assets. Because Medicaid pays less than private care, the quality of care may differ for you as an individual. You should carefully consider whether Medicaid eligibility is critical for your estate.

With careful planning, we can legally restructure your assets so you are eligible for Medicaid benefits. Some of the strategies we use include:

Gifting assets and money to loved ones (be careful of this. Done improperly, you could deplete your assets and be ineligible for Medicaid!)
Transferring property to an irrevocable trust
Creating a special needs trust for the benefit of a child with disabilities
Establishing a testamentary trust to provide for your surviving spouse
Buying annuities
Decreasing your wealth by paying your mortgage loan, repairing your home, buying a vehicle and prepaying funeral expenses

The most effective means for protecting your assets is to begin your Medicaid planning as soon as possible. Being proactive allows you to not only ensure you qualify for benefits, but also helps you protect your property and your loved ones. If you plan early, you can avoid Medicaid’s look-back period. It is legal to transfer property in order to qualify for Medicaid, but you want to accomplish this at least five years prior to applying for the benefits. Otherwise, you could incur costly penalties and jeopardize your eligibility.

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