1. Why should I prepare an estate plan?
Who do you want to inherit your property? When do you want them to receive it? In what proportions and under what conditions? If you choose not to plan and make these decisions, the State of Montana will decide for you (this is called intestacy). Your default beneficiaries will be based on whether you were married and who among your descendants or other relatives are still living. Generally, your assets will go to your closest living relatives. No assets will be distributed to charities that you regularly supported in life, and no consideration will be given to how close you were to a particular relative. For example, you may not have spoken to your brother in decades, but have a close relationship with your brother’s son. Despite your estrangement from your brother, if he is your closest living relative, he will get an inheritance and your favorite nephew won’t. Property is generally distributed outright in intestacy. This may not be the best option for your heirs, who may not be able to manage the inheritance, may be in the middle of a divorce or bankruptcy, or may be under age. Planning now gives you the opportunity to choose your beneficiaries and how they receive their inheritance. Finally, if you have minor children, you can designate who you would like to raise your children after your death.
2. What is probate?
Probate is a procedure to identify all assets owned by a deceased person (a “decedent”), identify the decedent’s creditors and beneficiaries, and the distribution of assets accordingly. Probate may be avoided by the use of a trust and/or coordinated beneficiary designations
3. What is the difference between a Will and a revocable trust?
A revocable trust is essentially a substitute for a Will, and distributes your property in the same manner. However, a revocable trust has the added advantage of avoiding probate, a process which is public, costly, and time-consuming. This is particularly beneficial if you own real estate in more than one state. If your trust owns all of your assets, you eliminate probate in each state where you own real estate. A revocable trust also provides for incapacity planning by avoiding the conservatorship process, which is established through the court. The conservatorship process is essentially probate for a living person and it comes with the same drawbacks, including being costly, open to the public, and time-consuming. However, a properly funded revocable trust will eliminate the need for a conservatorship because the trustee of the revocable trust can use the trust’s assets to provide for the trust’s maker and his family should he become incapacitated. However, a revocable trust requires more time and effort during your lifetime. With a trust, you must transfer legal ownership of substantially all assets to your trust while you are living. Some assets cannot be transferred to the trust, but instead should be “payable upon death” to the trust through a beneficiary designation. As you acquire additional assets, you must be careful to title assets in your trust’s name.
4. When do you need a trust?
A Trust can be created under a will or a stand-alone document in substitution of a will. Use it to exert some type of control over how the assets are distributed when or how you pass away.
5. When should you set up a trust?
Set up a trust when you have assets that you want held securely for future use by a beneficiary. The beneficiary can even be you.
6. I have am a beneficiary of a trust, can I alter its terms? Can I terminate it?
That’s a question for an attorney. If the Trust is a revocable or a living trust, the answer is likely that you can modify the trust. Even if a trust is irrevocable, there are ways to modify and potentially terminate an irrevocable trust. Certain criteria need to be met, but even irrevocable trusts can be modified or in some cases prematurely terminated.
7. Is a durable power of attorney revocable?
Yes. You can revoke your durable power of attorney at almost any time.
8. If I already have a living trust, why do I need a durable power of attorney?
A living trust covers only items in the trust. A power of attorney can protect all of your property not held in trust by authorizing someone to manage your property if you are unable to for any reason. Without a power of attorney, a court may have to appoint someone for that purpose, causing delays and additional expenses.
9. When does my durable power of attorney end?
Your durable power of attorney ends automatically when you die or revoke a power of attorney. In some states, your durable power of attorney will end automatically if you get a divorce and your ex-spouse was your agent and no alternate agent is named.
10. When will my durable power of attorney take effect?
Your durable power of attorney can be effective as soon as you sign it in the presence of a notary public. Some states require that you sign the document in front of additional witnesses. You can also choose to sign a durable springing power of attorney, under which you appoint someone to act on your behalf only if you become incapacitated.
11. How much decision-making authority can I grant through a power of attorney?
Generally, you can grant authority to make any or all of your financial decisions (e.g., those related to banking, accounts, insurance, taxes, real estate, etc.). You can choose which powers you want to grant, with one significant exception. You cannot authorize your attorney-in-fact to make changes to your last will.
12. If I complete a durable power of attorney, do I still need a will?
Yes. A durable power of attorney is valid only while you are alive. You still need a last will to explain how you want your estate to be managed and distributed after you die.
13. What is a guardian?
A guardian is a person appointed by the court to make healthcare and other mostly non-monetary decisions for someone who cannot make these types of decisions because of an injury, illness, or disability.
14. What is a conservator?
A conservator is a person appointed by the court to take care of someone’s finances when he or she cannot make these types of decisions because of an illness, injury, or disability.
15. What if the person made a durable power of attorney before becoming incapacitated?
- If the durable power of attorney covered the types of decisions the person needs to have made (financial, health care, etc.), the agent named in the document has the power to make those decisions.
- If the person made a durable power of attorney for one purpose and not another (such as a durable power of attorney for health care, but not a financial durable power of attorney), the court may still appoint a guardian or conservator to step in and make the types of decisions that the durable power of attorney did not include.
16. Who does the court appoint as a guardian or conservator?
- The court’s first choice is a close family member, usually a spouse or domestic partner, parent, or adult child.
- If no close family member is available or suitable, the court will consider other relatives or friends.
- If no family member or friend is available, the court will usually appoint a neutral, specially trained attorney who handles these matters on a regular basis.
17. What other alternatives to a Will exist?
- One alternative that also avoids probate is to own property in joint tenancy with rights of survivorship. Property held in joint tenancy automatically passes to the surviving owner upon the death of the first owner. Downfalls to titling property in joint tenancy include the possibility of an immediate and taxable gift, a potential future income tax liability to the recipient because the property will not receive a step-up in income tax basis, and the ability of the recipient’s creditors, such as a divorcing spouse, to reach the asset and potentially force the sale of the property. Also, if an intended recipient dies before you, then probate will still be necessary, and you may inadvertently disinherit children of the predeceased recipient. Another alternative is to designate a beneficiary on each asset by beneficiary designation or “pay on death” document. This option has many of the risks identified with joint tenancy. In summary, there is no substitute for a revocable trust.
18. What is real estate law?
Real estate law governs laws and litigation which has to do with property – including buildings which are affixed to a particular piece of land. This might include homes, commercial property or other types of real estate.
19. If I have purchased a home and found that something inside the home was faulty when I purchased it, is there anything I can do about it?
Often times, the buyer will be offered a warranty policy by the real estate agency to cover certain losses incurred by that buyer. You should determine whether you were given or purchased a warranty policy at the time of the home purchase. If not, you may need to speak to a real estate law attorney.
20. If I am purchasing or selling a home, should I hire an attorney to oversee the process?
Since you will be signing contracts and a substantial amount of money will likely be involved, it is a good idea to hire an attorney to protect your interests and ensure that the entire process is legal and valid.
21. Is there anything I should do before purchasing a property or land?
The title should be searched to ensure that the property is free and clear of any claims or liens. A real estate attorney can do this for you and ensure that it’s safe to go ahead and purchase the property or land you’re interested in.
22. If I have purchased a home where the seller agreed to certain repairs and those repairs are not made, what should I do?
The first thing you should do is contact your real estate agent. It’s possible that arrangements were made for the repairs that you’re unaware of. If the seller has not made the repairs and has not planned for the repairs, you may have a real estate law case against the seller.
23. What should I make sure of when I am purchasing a home?
Although it’s a great idea to consult an attorney before purchasing a home, there are several things you should make sure of. Make sure that all property which is supposed to go with the home is included in the contract. This may include appliances or other extras you were promised. You also want to inspect the damage report and look at the surrounding area. Pay close attention to any deadlines in the Contract and insist on a title report.
24. What should I make sure of when I am selling a home?
You’ll want to make sure that there are no claims or liens against your property and determine what items or property should be included in the sale. You will also want to consider your lowest desired price and what you’re willing to accept. A property law attorney can oversee the process and protect your interests. A good place to start is also to contact a title company to run title before placing the property on the market to ensure there are no surprises with title.
25. I’m Selling my home or property and there is a title defect. What do I do?
Contact a real estate attorney ASAP. There are many ways title may be defective. Some title cures can be made via a simple recorded form, others may require a quiet title petition to enable the Court to correct title.
26. As a seller, are there any defects which I must disclose to the buyers before signing a contract?
You should disclose all defects; however it’s very important that you discuss your options with an attorney. If there are defects in the home and you do not disclose them, you could find yourself in court.
27. Are there any tips the buyer should heed before purchasing a property?
The buyer should spend time in the neighborhood to determine whether he or she will be happy there. They should also make sure the home is inspected and that there are no major problems that will drive up the cost of the home. It’s best to receive advice from a real estate law attorney before purchasing.
28. For a home being sold as-is who is responsible for major repairs?
Typically, for homes that are sold as-is, the buyer is responsible for all repairs which must be made. Again, speaking to an attorney is the best idea.