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May 9, 2016 In Business Litigation, Estate Planning

Wyoming Close LLCs Protect Assets

Wyoming Close LLC Asset Protection Memphis TNWyoming Close LLCs Protect Assets

A popular asset protection tool we use at Patterson Bray is the Wyoming Close Limited Liability Company.  One or more people can establish and own this type of entity and may also manage the LLC.   

Anyone can establish a Wyoming Close LLC, even if you do not live in Wyoming or conduct your business there.

Protection from Lawsuits

Under current law, assets inside a Wyoming Close LLC are protected from “outside” lawsuits and creditors, such as those resulting from a car accident or malpractice action.  In a few states, like Wyoming, the sole remedy for a creditor of an LLC member against that member’s LLC interest is a “charging order.”  A charging order only allows the creditor access to the debtor’s LLC interest to the extent distributions are made to the member.

Estate and Gift Tax Benefits

Under current law, the value of a membership interest in a Wyoming Close LLC may be subject to valuation discounts for estate and gift tax purposes. We anticipate in the future that the IRS will institute regulations limiting tax benefits.

Separation of  “Hot” and “Cool” Assets 

A “hot” asset is something like a rental property.  A “cool” asset is something like a brokerage account. Separate LLCs should be formed to keep “hot” and “cool” assets separate.  “Cool” assets should be isolated from “hot” assets because any “inside” lawsuits, such as those resulting from accidents occurring on property inside the LLC, will subject “cool” assets to claims of creditors of the “hot” assets.

Is a Wyoming Close LLC right for you?

If you have questions about whether a Wyoming Close LLC might be right for you, or if you’re curious about other forms of asset protection and business organizations, please call us at 901-372-5003 or email us here. We will examine your personal situation and work to develop the asset protection strategy that is right for you.

named estate representative of will
February 25, 2016 In Estate Planning

Ask the Probate Lawyer: What to do if you’re named as Executor in a Will.

Ask the Probate Lawyer: What to do if you’re named as Executor in a Will.

Probate Lawyer for Personal Representative of Estate

If you’ve been designated to serve as the Personal Representative (sometimes also called Executor or Executrix) in a Will, you will need to hire a Probate Lawyer to handle the Estate in Probate Court. Don’t worry: the attorney fees charged by the Probate Lawyer will typically come out of the funds of the Estate, not from your own personal assets.

Once you’ve hired a Probate Lawyer, you’ll meet with the attorney and begin to gather all pertinent information. The attorney will prepare and file documents to petition the Probate Court to admit the deceased person’s Will for probate administration.

Can’t I just handle the business of the Estate Myself?

No.  In Tennessee, the administration of an Estate must be done with the assistance of a licensed  attorney. Many people mistakenly believe that if you are named as the Personal Representative in a Will, then you only need a copy of the Will and an I.D. to conduct business on behalf of the deceased person or the Estate, but this is not correct. To legally transact business on behalf of the Estate, you must be officially appointed by the Probate Court and present the proper authorization.

Do I have to go to Probate Court?

Yes, if the deceased person had assets or accounts that do not have a joint owner or a beneficiary named. You will have to go to Probate Court with the attorney to prove the Will and to be officially appointed by the Probate Judge as the Personal Representative of the Estate.  At this court appearance, the attorney will address the judge and you will be asked certain questions about the deceased person and the Will.  The Probate Judge will then review the Will and the proof and decide whether or not to admit the Will for probate. If the Will is admitted, you, as the Personal Representative, will then be sworn in as a fiduciary, and you will be issued “Letters Testamentary” or “Letters of Administration,” which will allow you to legally conduct business on behalf of the Estate.

Required Steps in Probate Administration

Once the Estate has been opened and you’ve been officially appointed to serve, you will complete the following required steps with the help of your Probate Lawyer:

(1)   Establish a separate bank account for the Estate;

(2)   Give notice to beneficiaries of the opening of the Estate;

(3)   Give notice to creditors and TennCare of the opening of the estate;

(4)   File affidavits regarding notice to beneficiaries and TennCare;

(5)   File annual accountings and inventories; and

(6)   Collect the deceased person’s assets and distribute them amongst the beneficiaries. 

Do I Get Paid for the Time and Expenses I Incur While Serving as a Personal Representative? 

Yes. A Personal Representative is entitled to reimbursement of expenses that he or she personally incurs in administering the Estate. A Personal Representative is entitled to a reasonable fee at the conclusion of the administration of the estate. However, the position is truly more of a responsibility than a profitable endeavor. There is a significant amount of work for the Personal Representative to do. The amount of the fee depends on a number of factors, which the Probate Lawyer will discuss with you. 

How long does the Probate Process take?

An Estate must remain open for a minimum of 4 months to allow creditors time to file any claims.  On average, it has been our experience that 6-9 months is a reasonable estimate of the time it takes to conclude the administration of an Estate if everything is straightforward.  In some cases, it can take 12-15 months.  If an Estate takes longer than 15 months to administer, it generally means that there has been a problem that has arisen during the process, such as a tax problem, a will contest, or even the presentation of an unknown heir.

Let us be your Probate Lawyer. We can help. 

Call us at 901-372-5003 if you need help. If you hire us, we’ll walk you through the entire process and do our best to make your job as Personal Representative as easy for you as possible. We handle probate cases throughout Tennessee and Mississippi, including in Shelby County, Memphis, Bartlett, Arlington, Germantown, and Cordova.

 

November 15, 2011 In Estate Planning

Who are my Beneficiaries? A critical question in planning for the future.

beneficiary designations estate planning lawyer

How does Property Pass to Beneficiaries?

Do you know who your beneficiaries are? When we ask clients this question, their first response is often quick and affirmative. However, we frequently discover through the estate planning process that the beneficiaries listed on our clients’ life insurance policies and retirement accounts are not who they think they are, nor are they the intended recipients of the property.

One of the most common misconceptions we see is how property passes at someone’s death.  Accounts that have beneficiary designations  pass to the beneficiary or beneficiaries named on the beneficiary designation form for that account regardless of what your will or trust says.  So, for example, if my Will says that everything passes to my spouse at my death, but my beneficiary form on my life insurance names my children as beneficiaries, my life insurance proceeds  pass to my children and not to my spouse. Here are some examples of accounts that typically designate beneficiaries:

  • life insurance
  • retirement accounts
  • transfer on death accounts (TOD)
  • payable on death accounts (POD)

Periodically Review Your Beneficiary Designations

The  Supreme Court case of Kennedy v. Plan Administrator of DuPont highlights the unintended results that may occur if your beneficiary designations are not reviewed periodically.  In this case, William Kennedy named his wife, Liv, as the sole beneficiary of his pension and retirement savings plans at DuPont.  When the couple later divorced, the Qualified Domestic Relations Order (QDRO) provided that Liv gave up her rights to receive any benefits from William’s pension and retirement plan.  Unfortunately, however, the court order was never submitted to DuPont and the beneficiary was never changed.  When William later died, DuPont paid out the plan benefits to his ex-wife, Liv.  Their daughter, Keri, was appointed as Executor of William’s Estate and filed suit claiming that the Estate should receive his retirement benefits because the QDRO clearly provided that Liv had waived any interest she might have in those benefits.  The Supreme Court upheld the ruling of the Circuit Court in saying that DuPont properly paid the benefits to Liv and that Liv was entitled to the pension and retirement funds even though the parties were not married at the time of William’s death and the QDRO clearly provided otherwise.

Moral of the Story

The moral to the story is that the beneficiary designation governs. Thus, it is very important that you know who is named on your various beneficiary forms so that your property goes to the beneficiary or beneficiaries that you intend for it to go to.  It is clear that William did not intend for his benefits to go to his ex-wife instead of his daughter, but the Supreme Court held that the beneficiary designation governed and that DuPont properly paid the benefits to Liv.

Tips for Beneficiary Designation Forms

Here are some tips and common problems to watch out for with your beneficiary designation forms:

1. Do you know where the form is? Generally, employers maintain records of the form, but if they cannot find their form when the time comes, the burden may be on you to produce a copy of the form.

2. Is the form up to date? Changes in your life may require you to review the forms periodically. If you have had a recent marriage, divorce, birth or death in your family, it is important to review your beneficiary designations. And remember, your Will does not change who the beneficiary is on an account or insurance policy.

3. Do you have a contingent beneficiary named? If the beneficiary you have named dies before you or is involved in a common accident with you, you may not know who the benefits will go to if you do not name a contingent or secondary beneficiary.

4. Have you named a minor as a beneficiary? Minors cannot legally hold title to property, including these benefits. If you have named a minor, a guardianship may have to be established and administered through the Probate Court concerning applicable funds.

Want to talk it over with an Estate Planning and Probate Lawyer?

If you have questions regarding your beneficiary designations and how they factor into your Estate Plan, please call us at 901-372-5003 or email us today. We’re ready to help you plan for the future.

 

September 8, 2011 In Estate Planning

Probate Process: How long does it take?

Probate Process: How long does it take?

probate process, how long does it takeHow long does the probate process take? I often pose this question at seminars and get a variety of answers. Two of my favorite answers are “years” and “forever.” While neither answer is correct, it typically indicates that someone in the room (or perhaps a friend or neighbor) has had a bad experience with Probate Court at some point. In Tennessee, a Probate Estate must remain open for a minimum of four (4) months from the time of first publication. This period is designed to give creditors time to come forward and assert a claim against the Estate.  An Estate must remain open the full four (4) months regardless of whether the deceased person had any debts.

Time Starts to Run on the Date of “First Publication”

When an estate is opened in Shelby County Probate Court, the clerk’s office notifies The Daily News, and they publish a public notice regarding the opening of the Estate, typically within a week of the opening of the Estate. This first publication marks the start of the four (4) months, and the Estate cannot be closed until 4 months after the date of first publication.

However, bear in mind that this is a minimum amount of time, and there is no guarantee that the Estate can be closed at the end of the 4 months. I frequently tell clients that 6-9 months is a more realistic average for a straightforward Probate Process. The “first accounting” is not due until 15 months from the opening of the Estate, so if the Estate is closed out within that 15 month period, you are still doing pretty well.

Why does the Probate Process take so long?

So what makes the probate process last beyond the 4 months? A number of factors often contribute to how long a Probate Estate is open. Preliminarily, there are 8-10 steps that must be completed for every Probate Estate regardless of the size of the Estate, the cooperation of the Beneficiaries, or the debts of the deceased person. If these steps have not been completed or if the proper letter has not been received from Tenncare of the Tennessee Department of Revenue, the Estate cannot be closed. If there are minor Beneficiaries involved and the Will does not contain instructions on holding those funds in trust, we often have to seek court guidance and have additional hearings regarding handling these funds. Likewise, if Beneficiaries are fighting, the Probate Process will often take significantly longer than the 4 month minimum. If the decedent left a number of debts, and creditors have filed claims against the Estate, each valid claim must be paid in full or settled before the Estate can be closed. If the decedent had property in more than one state, the process can take much longer. These are just a few of the factors that can contribute to a lengthier Probate Process.

Every Probate Case is Different

Although the correct answer is rarely, if ever, “years” and definitely not “forever,” the Probate Process can last much longer than Beneficiaries are expecting. The Probate Estate that is open for years is not the norm, but most attorneys who do a lot of Probate work will typically have at least a couple of cases that drag on for one reason or another. In many cases, where everything is straightforward, 6 months should be a reasonable estimation of how long it takes. Unfortunately, we often can’t predict when we open an Estate the circumstances that may arise, so while it may seem simple on the front end, it could also turn out to be more complex. If we know some of the complicating circumstances in the planning stages, we can often  incorporate strategies to avoid some of the Probate pitfalls.

Need help with Probate Court?

Please call us at 901-372-5003. We know you have a lot on your mind and the thought of going to court can be overwhelming. We are experienced probate lawyers and we can guide you through the Probate Process.

How to Avoid Probate

Did you know that you can eliminate the Probate Process altogether through revocable living trust planning? If you would like to learn more about Probate or about planning to avoid probate, please call us. We can guide you through an Estate Plan designed specifically for you and your family.

May 28, 2009 In Estate Planning

Leaving a Legacy Greater Than Wealth: More than an Estate Plan

Leaving a Legacy Greater Than Wealth: More than an Estate Plan

estate plan lawyer

An estate plan isn’t all you need. While providing our children with a better life than we had may be a noble goal, the goal is often lost in translation because of the means we choose. As the saying in America goes, it is “shirt sleeves to shirt sleeves in three generations.”  In fact, studies show  that 60% of transferred or inherited wealth is lost by the end of the second generation, and 90% of family wealth is lost by the third generation.

Is money really the root of all evil?  Is giving our children a life of affluence replacing more traditional values such that our descendants cannot manage wealth?

Approaching an estate plan from strictly a tax, asset protection, or other objective standpoint may indeed add to the problem.  These issues certainly need to be addressed as part of any comprehensive estate plan, but perhaps the seeds of a legacy are planted during lifetime instead of at death and have little to do with a dollar figure.

Leaving a legacy may involve telling our children and grandchildren how the wealth was accumulated, the work ethic that helped us achieve what we have achieved, and the hard times we went through to get there.  It may involve teaching our children, even adult children, how to manage money, invest wisely, plan well, and save for retirement.  In that case, even if the money is gone or depleted, we have left a legacy far greater for our descendants because we have truly given them the tools to accumulate and maintain their own wealth.  Indeed, isn’t this giving them the better life we had envisioned for them?

We Can Design an Estate Plan Especially for You.

One of our primary goals in working with clients and prospective clients is helping them design an estate plan that fits in with their overall goals and values, rather than fitting their goals into a “cookie-cutter” estate plan. If we can help you, please call (901) 372-5003 or email us here.  Your initial consultation with us is always free of charge.