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  • Can’t I just utilize the “Joint Tenancy” title to avoid Probate of real property?
    For a married couple, holding real property as joint tenants will avoid probate at the first death because of the joint tenancy’s right of survivorship feature. However, when the surviving owner becomes a sole owner of the property, at his/her second death the real property will need to be probated. Most notably, the joint tenancy title does not allow for a stepped up cost basis of the survivor’s half of the property to the decedent’s date of death value. This results is a significantly higher capital gains tax if the surviving spouse sells the property. Conversely, if the property is owned in trust as community property, at the first death the entire property receives a stepped up cost basis to date of death value, which helps bridge the gap between the original cost basis (original purchase price of the property) and its sale price, thus reducing capital gains.
  • How is a family trust affected by a divorce?
    A marital dissolution by operation of law revokes all beneficiary and fiduciary designations in a family trust with regard to each of the former spouses. Following the divorce, each former spouse will need to address his and her own separate estate planning, and protect from probate by setting up an individual trust. Furthermore, to comply with the Marital Settlement Agreement and Divorce Decree issued by the Family Court Judge, assets from the family trust will need to be retitled into the individual trusts of each of the spouses.
  • How does a Second Marriage trust work?
    This type of trust is especially useful in the case of a second marriage when each spouse comes into the marriage with significant separate property assets, and each has children from a prior marriage. Without proper estate planning, there is a possibility that the children of one of the spouses will end up with all of the couple’s property and the children of the other spouse will get nothing. A properly drawn living trust ensures that the interests of each set of children are properly protected, while the surviving spouse remains adequately cared for during his or her life. In this case, a trust is the only way to accomplish such goals, while also avoiding formal probate administration.
  • How does a Trust avoid a Conservatorship?
    If you become incapacitated and are unable to conduct your financial affairs on your own, and you do not have a trust and a Durable Power of Attorney for financial management, your family may have to petition the court to have a Conservator appointed for you. A Conservator will take charge of your assets and have signing authority over your property. Conservatorship cases are strictly supervised by the Courts and involve a number of cost-intensive formalities. Having a living trust and a durable power of attorney for financial management as well as one for health care, enables a trusted person to conduct your financial and medical affairs without any court involvement, while protecting your privacy and maximizing your assets for your benefit rather than spending them on court costs and fees.
  • Why have a Health Care Power of Attorney?
    If you become incapaci¬tated, your Health Care Agent will have the ability and authority to make medical decisions for you, authorize medical treatment, review medical records, and ultimately, if you so desire, will have the power to make life and death decisions, including terminating life support. Furthermore, under the Health Care Insurance Portability and Accountability Act of 1996 (“HIPAA”), your Agent will have your express permission to request and receive your medical records, and the holders of such records will be released from liability to surrender them.
  • Can I still make medical decisions for my child after he or she turns 18 and legally becomes an Adult?
    Be mindful that as a parent, you can do so for your children without their express permission only until they reach age of majority. After they turn 18, you can no longer request and receive their medical records or authorize medical treatment on their behalf. Therefore it is wise for parents of college age children to have Health Care Powers of Attorney and HIPAA Releases signed by their (now adult) children, appointing the Parents as Health Care Agents.

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