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ESTATE PLANNING
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286 - Estate Planning
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TOPIC 82: METHODS OF PROPERTY TRANSFER AT DEATH
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1 The probate process: Probate is the process by which a court validates the will of a deceased individual Probate also involves all other matters in regard to the settlement of estates of deceased persons A Testate succession (1) When a person dies leaving a will (2) This obligates the executor named in the will (after probate) to dispose of the decedent s property B Intestate succession (1) When a person dies without leaving a will (2) An administrator is appointed by the court to dispose of the decedent s property (3) The state determines how the assets will be conveyed (4) Intestate succession laws (a) Per stirpes distribution Gives larger distributions to descendents of a closer degree of consanguinity (blood relationship) to the decedent (b) Per capita distribution Requires that all eligible descendents receive an equal share of the property C Advantages and disadvantages of probate (1) Advantages (a) Protects creditors (b) Provides clean title to heirs or legatees (c) Provides for the orderly administration of property (d) Establishes title to property where there may be some question as to ownership (2) Disadvantages (a) Excessive cost (b) Excessive delays (c) Open to public scrutiny D Assets subject to probate (1) Assets in which the decedent has sole title (2) Assets held by tenancy in common (3) Assets held as community property (4) Assets disposed of by will (5) Contract proceeds that are payable to the estate E Techniques of avoiding probate (1) Creating joint tenancy with right of survivorship (2) Creating a tenancy by its entirety (3) Using trusts (4) Establishing a funded revocable living trust (5) Establishing a bene ciary (other than the estate) to transfer by contract, such as life insurance contracts and retirement plans F Ancillary probate (1) This occurs when a person domiciled in one state dies and owns property in another state (usually real estate) (2) It creates a special probate proceeding in the state in which the property is held
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Topic 82: Methods of Property Transfer at Death - 287 (3) The will should contain a provision that appoints an ancillary executor for disposing the property 2 Operation of law (title) A Operation of law refers to the passing of rights to a property from one person to another by the application of the established laws This action uses laws speci c to the situation and is done without any effort by the persons involved B Examples of operation of law as it relates to property interests (1) Joint tenancy with right of survivorship (JTWROS) (a) Equal ownership and automatic survivorship (b) Involves an undivided right to possess the property (c) Not subject to probate (2) Interests by the entirety (a) This is like joint tenancy, but can be created only between a husband and wife (b) It is unlike joint tenancy, in that neither spouse can transfer property without the consent of the other spouse (c) Not subject to probate (3) Tenancy in common (TC) (a) Can be unequal ownership and includes no automatic survivorship (b) Involves an undivided right to possess the property (c) Subject to probate (4) Community property (CP) (a) Exists only between spouses (b) CP is created immediately on acquisition of the property (c) No automatic survivorship Decedent s share can be transferred to someone other than spouse, with the use of a will (d) Decedent s share is subject to probate (5) The extent of ownership interest in property (a) Fee simple Complete ownership with all rights (sell, gift, transfer, etc) Property will pass through probate (b) Life estate Ownership interest ceases at death For example, Steve assigns his interest in a house to Sarah, his close friend, for her use to enjoy until her death Sarah has received a life estate in the house 3 Transfers through trusts A A trust is created to hold, manage, and distribute assets to the bene ciaries as indicated by the grantor of the trust Property held in a trust is called the principal (also called the corpus or trust estate) Almost any form of property or asset can be included in a trust B There are three major parties to a trust: (1) Trustor (also called grantor, settlor, or creator) The person who creates the trust and whose property is used to fund the trust (2) Trustee The person or entity that takes legal title and manages the trust assets (3) Bene ciary The person who enjoys the bene cial interest in the trust C There are two principal forms of trusts: (1) Inter vivos or living trust Activated immediately upon its creation It is generally funded during the life of the trustor
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288 - Estate Planning (2) Testamentary trust Written into the will and implemented upon death The funding mechanism is the probate process D Transfers through trusts occur for ve primary reasons: (1) To provide for multiple bene ciaries (2) To manage property in the event of incapacitation (3) To protect bene ciaries from themselves and others (4) To avoid probate (5) To reduce transfer taxes 4 Transfers by contract A Transfer by contract refers to the passing of assets through (1) Life insurance contracts (2) Annuities (3) Quali ed retirement plans (4) Buy-sell agreements (5) Prenuptial agreements B Transfer by contract avoids probate if the bene ciary is someone other than the estate
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