Important Considerations for a Probate Attorney Regarding a Prenup or Postnup Agreement

There’s no doubt about it. The world has drastically changed in just the past 10 years or so. Everything from how we communicate to how we do our banking is mostly digital now. However, as much convenience as the digital era has brought us, some areas of our lives have become that much more complicated to deal with because of it. This is especially true when it comes to real estate planning. In fact, a probate attorney will often begin his or her consultations with questions regarding digital assets. Understandably, this can be quite a surprise, especially for older individuals who may not be too familiar with the concept. However, older people are not the only ones having issues with digital assets. Thus, the following includes further information on how to bequeath your digital assets to your loved ones after you’ve passed.

What Exactly Are Digital Assets & Why Does a Probate Attorney Require Them?

Hold onto your seat because what defines a digital asset includes a lot of things that you may or may not be familiar with. However, understanding exactly what they are is critical to ensuring that you do not forget any of them when it’s time to sit down with your probate attorney. An estate planning attorney in Las Vegas will often ask you a series of questions to further ensure that nothing is forgotten. So what, exactly, are these digital assets? Digital assets are not tangible, meaning that you can’t hold them. For example, a tangible asset is a home because it’s a real location, and it can be touched. However, something such as your social media account would be considered a digital asset. Other examples of digital assets include your online banking information, emails, copyright licenses, and even your cryptocurrency, to name a few. Now you understand why most probate attorneys in Las Vegas will delve deep into your life before helping you start on your estate plan.

The Importance of Being Specific

After your probate lawyer has gone through all your digital assets, he or she is then going to ask who you want your assets to transfer to at the time of your death. This is not only an important step but one that you should be as specific as possible. This is because if there is no specific beneficiary within your estate plan, all your digital assets will be passed onto residuary beneficiaries. These people usually receive the remaining parts of your estate after property and other assets have been given to the family. Although some people see tangible assets, such as a home or car, as a much more important thing to concentrate on, digital assets, such as a cryptocurrency account, can also hold a lot of value. Unfortunately, because families do not know or understand digital assets, mistakes in legal fights for those assets can occur.

Digital Assets That Cannot Pass Through an Estate Plan

Contrary to popular belief, there are some limitations on the types of digital assets that you can add and transfer to your will. For example, two of the most common digital assets that are nontransferable within a will include your social media pages and any email accounts you may have. The reason for this is due to the fact that you do not legally own these accounts. Social media and email companies often place certain legal wording within their small print that states that people have a license to use the service but don’t own it outright. So does this mean that you should give up on transferring them to your family? The answer to that is no. The fact is that even if they are not transferable, you should still make a plan regarding their existence after your death. If you have further questions about specific digital assets, speaking to your personal attorney is the best route to take.

Leave Clear Information/Instructions

So you’ve listed all the digital assets that you want to be transferred after your death, but the job isn’t done just yet. The next step involves your chosen executor. The executor is the person that you personally choose to handle your entire estate after your passing. This individual’s responsibilities include distributing property and paying off debts, including the cost of your funeral. Today, however, there is one more task to add to the list of responsibilities, and that includes handling your digital assets. However, even if you have given your executor authority to do so, he or she may still not have any legal grounds to access them. In fact, if the executor does end up getting legal permission, he or she will still have to go battle with the companies themselves. Thus, it is highly recommended that you leave clear and up-to-date login information for him or her to use. It must be noted that some people may not exactly want their executor to gain access to every single digital asset, so working with your attorney to find ways to decide who and how these assets are going to be handled is highly encouraged.

Appointing a “Digital Executor”

Yes, a digital executor is a real thing. As stated above, because a lot of things have changed in the area of estate planning, several state governments have quickly taken steps to make the process that much easier. One of those changes includes the ability to add a digital executor to your estate plan. This is a person who may deal with your tangible assets but can also be solely responsible for digital assets. Utilizing the new Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), he or she can quickly gain access to your accounts and begin the proper distribution process. The goal of state governments is to make the process much easier and up to date. Something to keep in mind is that RUFADAA is not present within all 50 states as a few have barely begun to introduce it. However, those living in the state of Nevada can rest assured that RUFADAA is currently enacted.

Stocks certainly qualify as important asset. Investments of this nature are also something that can be passed along to someone special in your life when you pass on if you prefer to take this step. Fortunately, this is something a probate attorney also familiar with other aspects of estate management and planning can help you out with in terms of providing important guidance and advice. Below, we go over the ways you could go about leaving stocks to someone.

Talk to an Estate Planning and Probate Lawyer About a Will

One of the steps a probate lawyer also specializing in various aspects of estate planning can take for you with assets that involve stocks is to help you put together a will. On your end, you’ll need to gather all documents that pertain to the stocks you wish to leave to a family member or other loved one in your will, including any paper stock certificates you may have in your possession.

An estate planning attorney in Las Vegas will then ask you which beneficiaries you prefer to leave your stocks to in your will. With stocks, it’s often possible to divide these assets by specific number of stocks you own, by each individual company or issuing firm, or any other way you see fit. In order to do this, you’ll need to provide the basic details for each listed beneficiary. At the very least, this usually includes names along with addresses, phone numbers, and any other preferred contact methods.

Also, get into the habit of regularly reviewing your will with an attorney. Doing so gives you a chance to make any adjustments or changes you might want to or need to make. For instance, you may need to add newly acquired stocks to your list of assets if you also wish to pass these assets along in your will, or you might change your mind about who will get what stocks. A will isn’t set in stone, meaning changes can be made when you feel it’s appropriate to do so.

Discuss a Transfer on Death Registration With Your Broker

With this option, instead of working directly with an estate planning attorney in Las Vegas, you’ll contact your broker. You’ll receive a transfer on death, or TOD, form to register your account so the applicable stocks will transfer to the designated indicated upon your death. You may also need to have the form notarized, which is also common with wills when witnesses aren’t available.

If your stocks are in paper certificate form, you’ll need to contact the transfer agent responsible for managing the issuance of those stocks. The company that issued the stocks should be able to give you this information if you don’t have immediate access to it. Once you get a hold of the transfer agent, they can give you the appropriate forms. While it’s not necessary to do so, you may wish to let an estate attorney know about any transfer arrangements you made directly with a broker so this fact can be referenced in your will.

Explore Trust Options With an Attorney

For this option, it can be helpful to work with an estate planning or probate lawyer. What you’ll be doing here is using a trust to disperse your stocks to your preferred or designated beneficiaries. This can be done with an entirely new trust if you don’t already have one set up, or through an existing trust that includes your other assets. Because there are many options with trusts, an attorney can walk you through the possibilities so you can determine what’s best for your needs.

With stocks in paper form, the original certificate will need to be returned to the stock transfer agent. They will then exchange it for a new certificate so it can be funded in your preferred type of trust. In other words, it will be issued in the name of the trust. You’ll also need to obtain a Medallion Signature Guarantee on the stock transfer form.

It’s also typical to need to mail the original certificate via registered mail. In order to do this, the shares will need to be insured for 2 percent of their current fair market value. However, this step can be avoided if you deposit the certificates into a brokerage account.

Generally, with stocks or bonds you wish to hold in a trust, you’ll need a document referred to as a securities assignment. This document is sometimes referred to as a “stock power.” What this document does is ask the transfer agent for permission to transfer stocks – a.k.a. the “securities” – to a specific trust.

What Happens When It’s Time to Transfer Stocks to Beneficiaries?

What will happen when it’s time for your stocks to be passed along to your designated beneficiaries? With stocks given to someone via a will or trust, first know your beneficiaries will not be able to take immediate possession of your stocks. In fact, the stocks technically belong to your estate or to the trust until officially transferred. This is a process a probate attorney in Las Vegas can oversee when it’s time to sort through your other assets and pass them along to beneficiaries.

The individual you appoint as your estate’s personal representative or trustee will be officially be responsible for reissuing your stocks to your beneficiaries as specified. The brokerage firm holding the stocks will also need to be contacted to request a list of the stocks. The broker typically will need a copy of the will or trust as well as the order that appoints your preferred individual as the trustee or estate representative. A copy of the death certificate is usually required as well.

Each beneficiary will then be contacted by the trustee or estate representative. It’s also possible for a probate lawyer to lend a hand with the process of contacting beneficiaries to inform them that they’ll be receiving stocks. This can be helpful since an experienced attorney knows what specific information to gather from each beneficiary.

Lastly, transfer documents will be needed as well for each stock being reissued to specific beneficiaries. These documents will also need to be Medallion stamped by a financial institution. The purpose of this stamp is to ensure the authenticity of your signature on the transfer documents. The stock broker or brokerage firm will then receive these documents so the stocks can be appropriately, officially, and legally sent to the designated beneficiaries.

One of the most common misconceptions regarding estate planning is that a will is all you need to ensure that your family members will get what you want them to have. Although this is certainly a great way to protect your assets, and one that any probate lawyer still will highly recommend, there are other steps you need to take to protect your assets. One of those includes creating a trust for your assets. But is it really necessary? Read on to learn about the many benefits that come from putting your assets into a trust before your death.

How a Probate Lawyer Would Define a Trust

Understandably, most people are confused as to the difference between a will and a trust. Although a will provides you with the ability to clearly state your intentions for your assets in terms of who gets what, a trust may be seen as an added layer of protection for those assets with living and testamentary trusts being your two options. In many cases, a probate lawyer would recommend that you go this route if you have many assets to your name. Thus, you will often work with a probate attorney to develop a carefully crafted trust as well as pick the (if not both) type of trust you want to include in your estate plan.

The Benefits of Adding Assets to Your Trust

As stated above, a trust is often seen as an extra layer of protection for your estate. However, some people may still have some reservations about contacting their nearest probate attorney in Las Vegas and starting the process. Below includes the list of benefits that come with working and creating a trust with a professional estate planning attorney in Las Vegas.

May Help to Avoid Probate

It’s safe to say that you don’t want your family to both grieve your loss and worry about obtaining your assets at the same time. However, this is exactly what happens when there are many assets to be distributed and not enough documentation to prove what goes where. So what’s so bad about the probate process? The reason many want to avoid this legal process is because of just how long it takes. In some states, relatives may not be able to obtain your assets for up to six months and, in some rare cases, even years. In addition, unlike a will, a trust agreement does not become public information, thus helping to protect your family from potential lawsuits filed from distant relatives who may want their piece of the pie. Having a trust in place allows you to help eliminate the potential need to go through the probate process and the potential problems that come with not having one.

Offers Protection During Life

One of the unique aspects of a trust is that it can be beneficial to your estate during life as well. For example, if you are ever unfortunately involved in a serious accident or become gravely ill, your trust can kick in. Furthermore, utilizing what is called a revocable trust, you do not have to pass away for your family to take control of your assets. To be exact, control of your assets transfers to a trustee chosen by yourself at the moment of the trust’s creation. So what can a trustee do with your assets while you’re incapacitated? A trustee will be able to use assets to pay off basic costs of living expenses for your family, any medical bills that accumulate and even be allowed to file your taxes for that year. Although this is something that nobody ever wants to think about, it is vital that you include a revocable trust into your estate plan.

May Provide Certain Tax Benefits

There’s no doubt about it; one of the biggest concerns for people with a trust are the taxes that their relatives may have to pay at the time of their passing. When you create a trust, you will be given the option of it being either a revocable or irrevocable trust. A revocable trust is often the preferred route for some people as it is very flexible, and thus, things can be amended. However, that could lead to some uncertainty regarding how much taxes need to be paid. An irrevocable trust cannot be changed after you sign. Going this route may lead to certain taxes, such as a gift tax, having to be paid, but it can place you in a great position to add assets that may be sheltered from an estate tax after you pass away.

Offers Flexibility

As stated above, a revocable trust offers you the ability to change certain things within your trust agreement at any point in your life. This may be the best route to take if you are young, as life will often change drastically. For example, new children may be born, or certain relatives may pass away.

There’s no doubt about it; death in the family can be an incredibly difficult and sad time in a person’s life. However, the very last thing someone is thinking during this time, and understandably so, is taxes. However, because the government and its agencies were not made to reflect human compassion, any taxes owed will need to be taken care of before certain deadlines. Read on to learn further about this very important part of life and how a probate attorney may be able to help you deal with the taxes that come after death.

Seeking Council From a Probate Attorney Before Death

One of the most common mistakes people make while they are alive is not seeking the services of a probate attorney. This is often because most people have this notion that only the ultra-wealthy would ever need to deal with a probate lawyer. This, of course, is not the case, as even those within the lower-middle-class could benefit from a probate attorney Las Vegas service. So, why are they so important to meet with? One of the most common situations that would require the services of a probate attorney is when someone within the family is making noise about not liking their end of the deal when it comes to their inheritance. These family members can quickly cause a lot of trouble at the movement of your death by filing lawsuit after lawsuit. Because you wouldn’t want to put your family through that, a probate attorney may be your best in eliminating as much of that potential issue as possible.

Estate Taxes and Inheritance Taxes

As stated above, bringing in a probate lawyer onto your team is a great route to take, but they are not only there to take care of those rowdy family members. Much of their work also relates to your estate plan. Even if you are just looking to pass on some common items such as a home or car to your family members, taxes are going to play a large part at the time of your death. In this part of the article, we will discuss two of the most common taxes that your family will face at the moment of your death: estate and inheritance taxes.

Estate Taxes

Contrary to popular belief, donating before your death does not eliminate estate taxes. Estate taxes are those that are paid to the federal government, and they are determined by the number and value of assets you hold. At the moment of this writing, the current number set by the federal government for paying estate taxes is $11.70 million or more. If you do not fall into this income bracket, there is no need to worry about paying an estate tax.

Inheritance Tax or “Death Duty”

The inheritance tax, also known as the “death duty,” is something that would be paid by a vast majority of people. This is because your state government is now looking into the assets you have acquired from your family member. The taxes you pay will be determined by the asset(s) overall value. It must be noted that only six states currently have an inheritance tax law in their books. These include Iowa, Kentucky, Maryland, Nebraska, New Jersey, and Pennsylvania. If you wish to go around this, many people will opt-in to give cash rather than assets. They will do this by placing money into trust funds or through an insurance policy.

Marital Deduction

A common concern regarding married couples is the risk of their spouse being heavily taxed after death. If the person who has passed was the breadwinner, heavy taxes could seriously compromise a person’s ability to live comfortably. Fortunately, the IRS does not tax spouses. This is called a marital deduction, but in reality, it is only a tax deferral as the funds will be taxed at the time of your spouse’s death. However, if your spouse is not a legal U.S. citizen, any funds you leave them will be taxed immediately. This is because the IRS is afraid that the spouse will quickly leave the country once they obtain that money, thus depriving the government of collecting their share.

Understanding Gift Taxes

Another area that does not get the attention it deserves is the taxes placed on gifts. There are instances where family members will gift certain items or money to a relative before their death as a means of avoiding taxes. The fact is that the IRS considers most gifts taxable, and thus you may end up placing a burden on someone instead of making their lives easier. Fortunately, there are a few ways to help them save money or entirely avoid taxes. For example, the IRS allows the donor to pay the taxes that would have been owed, thus removing that burden from your family member. In terms of avoiding taxes, the IRS exempts any gifts that are meant to pay for things such as school tuition or any medical expenses. Of course, it is always recommended to speak with your preferred attorney and accountant before making moves.