Estate Planning with a Trust

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In a general sense, a trust is nothing more than an arrangement whereby one person agrees to hold property for the benefit of another.  A “testamentary trust” is a trust created under a Last Will and Testament. As such, a testamentary trust becomes effective only after the testator’s death and, even then, the will must be approved and admitted to probate.

A “living trust,”  is a trust created during the grantor’s lifetime, and the trust becomes effective immediately upon its creation. Living trusts are created by a written instrument, called a “trust instrument.” If the grantor is also the sole trustee, then the trust instrument is called a “declaration of trust,” because the grantor simply declares his or her intentions to the world. However, if someone other than the grantor is a trustee, then the trust instrument becomes a “trust agreement,” because the grantor and the trustee must agree on the terms of the trust.

Since living trusts are created during one’s lifetime, they can be either revocable or irrevocable. A “revocable trust” or “revocable living trust” is one that can be amended or changed, or even terminated, during the grantor’s lifetime. In almost all cases, it is the grantor who reserves this right when the trust is created. Even so, the trust becomes irrevocable upon the grantor’s death because only the grantor retains the right to amend or terminate the trust.

An “irrevocable trust” or “irrevocable living trust” is one that cannot be amended or changed, or even terminated, during the grantor’s lifetime. Once created, an irrevocable trust is governed exclusively by the terms of the trust instrument without any control by the grantor. For this reason, irrevocable trusts are created almost exclusively to obtain favorable income tax and/or estate tax benefits for the grantor.

Revocable Living Trust (RLT) are for the purposes of avoiding probate in Washington State, as well as making sure that assets are protected during life, protecting assets for certain beneficiaries, reducing estate taxes, avoiding will contests, etc.   A RLT will only govern assets that are held in the trust or that are conveyed to it.  This means that assets held in an individual name will be governed by the Last Will and Testament of the deceased.  A pour-over Will will govern the assets and those assets will still be subject to probate, even though the RLT will govern their distribution.  For a Trust to work, there must be a Will and and a funded RLT.

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Estate Planning with an LLC

With the widespread adoption of limited liability company acts by state legislatures, limited liability companies (LLC) have become the business organization of choice for small closely held businesses. An LLC also provides tax advantages to transfer wealth from one generation to another while allowing the donor to maintain control over over the assets until death..

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An LLC consists of members and managers. It can be structured like a limited partnership, with the members being passive investors and the managers actively managing the company. The concepts of wealth transfer are the same for LLCs and limited partnerships: The generation transferring the wealth (the parents) forms an LLC, making themselves both managers and members. The generation receiving the wealth (the children) are made members of the company. Initially, the parents hold all of the membership interest in the company along with the assets it represents. Over time, the membership interest is gifted to the children, within allowable gift tax amounts, and the parents retain the control of the company and its assets as the managers. LLCs can be structured to allow flexibility to accommodate income distribution issues and restrictions on transfers of interests

Estate Planning with a Will

A “Last Will and Testament” is a legal document that allows you to say who should get your property when you die. Besides saying who should get your property when you die, a Will also gives you the opportunity to say who you want to be in charge of settling your estate. It also gives you the opportunity to say who you want to serve as guardians of your minor children. And, it gives you the opportunity to protect any money or property you give to minor children and/or other beneficiaries who are not good candidates to receive an inheritance outright; i.e., via the creation of testamentary trusts (see below).

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In order to be valid, a Last Will and Testament must comply with Washington law. Washington law requires the testator to be over the age of 18, put the will in writing, and it must be witnessed by 2 people that are “uninterested,” meaning they receive nothing under the will.

You can change or revoke your Last Will and Testament as often as you’d like. There are two ways in which you can change your Will. First, you can prepare an amendment to your Will (called a “codicil”). With a codicil, your Last Will and Testament remains in place, but one or more of its provisions are changed by the terms of the codicil. To be valid, a codicil must be executed with the same formality as a Last Will and Testament; i.e., it must be in writing, it must be signed by you, and it must be attested by two independent witnesses.

The second way in which you can change your will is to make an entirely new one. The new Will can be identical to the original Will, except for the changes you wish to make. Because it is a Last Will and Testament, it will have to be made and executed with the same formalities as your original Will; i.e., it must be in writing, it must be signed by you, and it must be attested to by two independent witnesses. The new Will automatically revokes the prior Will as a matter of law.

If you die without a Last Will and Testament, you are said to have died “intestate.” In that case, the laws of the state in which you are domiciled at the time of your death will control the settlement of your estate and the distribution of your probate property. There are other considerations as well. For example, if you die without a Will, the state will appoint a personal representative to settle your estate. That could be anyone, including a local attorney, a professional administrator, or a family member. Moreover, the court-appointed representative will not have the authority to make many decisions without obtaining court approval beforehand. If you have minor children, the court would appoint guardians for them. There is no assurance, however, that the court will look for the same qualities in a guardian as you would have wanted. Court-appointed guardians are also entitled to compensation for their services, which can be a very expensive proposition and consume all the money that is left for your children.

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Laws on Estate Planning

In Washington, many laws concerning estate planning are found in Title 11 (Probate and Trust law) of the Revised Code of Washington (RCW). Additional laws may be found in Title 26 (Domestic Relations), Title 63 (Personal Property), Title 64 (Real Property), Title 68 (Cemeteries Morgues and Human Remains), Title 70 (Public Health and Safety), Title 83 (Estate Taxation). You may also need to look at Federal Laws.

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What is Estate Planning?

Estate planning is the process, undertaken before your death, of ensuring that your money and property are given away as you would like. Without estate planning, you have no say in who inherits your money, your family may have to pay taxes, and probate could be more complicated and time-consuming than is necessary. The most common tools used in estate planning are wills, trusts, powers of attorney, and living wills. Other specialized tools may be used to avoid probate.

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White Bluffs Bladderpod.

Help request- for all of you along rivers or streams, please keep your eyes open for bladderpods. If you see a population, please let me know so we can have someone come check it out. Specifically looking for this plant along the Snake River into Idaho and Montana. Bladderpods need to look similar to the White Bluffs Bladderpod.

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Boundary Line Adjustments- the ins and outs

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Many times neighbors realize that what they thought was there boundary line really isn’t. With modern technology, it is much easier for lay people, and surveyors, to find an accurate boundary line for a person’s property. The invention of GPS is both good and bad, you now know what you really have. The Courts have had to deal with this issue by coming up with rulings to figure out who the true owner of a property is. Adverse possession and acquiescence are two of the main theories to try and determine the legal boundaries of a person’s land. These theories deserve articles of their own and won’t be dealt with in this article. Many times a fence line or other monument is what all property owners thought was the property line and it isn’t. In the Columbia Basin, due to the fact that parcels are not round, many times an irrigation circle will go over the property line onto a neighbors piece of property. In dealing with this issue, legislators passes WAC 458-61A-109 to deal with boundary line adjustments. Boundary line adjustments are a method to make minor changes to existing property lines between two or more contiguous parcels, meaning that the parcels must be touching where the change occurs. A few examples of common boundary line adjustments are the following, which are used as examples in WAC 458-61A-109:

(i) Moving a property line to follow an existing fence line;

(ii) Moving a property line around a structure to meet required setbacks;

(iii) Moving a property line to remedy a boundary line dispute;

(iv) Moving a property line to adjust property size and/or shape for owner convenience; and

(v) Selling a small section of property to an adjacent property owner.
Boundary line adjustments can’t be used in every case. For example if you are in the county and your lot size is already the minimum required, unless the neighbor agrees to do a trade, it may not be the answer you are looking for to remedy a problem. Boundary line adjustments must follow the legal requirements for your area, such as your county, city, and/or state. There is usually a process, and most times a surveyor is strongly advised, if not required. Most areas also require a deed to transfer the property that must be filed with the Auditor. To work up that deed, you may need an attorney. The survey map and the deed must both be filed, and any easements, restrictions, covenants, etc that go with the property need to be spelled out on said documents.
Boundary line adjustments are an excellent tool that are oftentimes overlooked as a solution. Cheaper than a lawsuit, easier than a lawsuit, and the answer that may save your relationship with your neighbor.

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Honesty

Your counsel can only prepare for any circumstance if he/she knows all of the facts. Normally, surprises are going to harm your case not help it. Your attorney is there to assist you, so divulge all information pertaining to the situation. Your attorney may ask you questions that you do not think are relevant or that you might think are personal, but remember, they are there to ensure that you have the best outcome.

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Act in a timely Fashion

gg61049176If you find yourself in a sticky situation, whether you need legal counsel or just advice, the sooner you seek help the better off you will be. The longer you wait the longer the opposing counsel has to build a case against you or maybe just for some documents to get lost. Typically, your counsel will need time to review the case.