LA Probate Law on Non Traditional Estate Planning
Estate planning is of critical importance in providing for loved ones in a non-traditional family. State and federal laws protect married couples in the event of death—the spouse of a person who dies without a will has rights to his or her estate and assets transferred because of death may be transferred to a spouse free of estate tax under the marital deduction. Unmarried couples and non-traditional families do not have these legal rights explains LA Probate Law. There no laws protecting unmarried partners and the laws tend to favor biological next of kin. Statistics show that non-traditional families make up a significant sector of our population and they face unique estate planning issues in order to ensure that the partners involved are cared for as those in traditional relationships. The issues that non-traditional families face can often be handled with the most traditional estate planning tools. A Non-Traditional family for purposes of this article is defined simply as a two or more person relationship that is not recognized by both the state and federal governments as a marital relationship.
A will is the foundation of every estate plan. Wills are often criticized because the assets that pass through the will are generally subject to probate, which is court supervision of the distribution of assets. In some states, this can be expensive because the fees charged by the executor and lawyer are a percentage of the estate. In other states, percentages are not allowed. However, no matter how many legal vehicles are employed to remove assets from probate, there is always property held by the individual that cannot practically be transferred except through the probate process. Personal possessions and clothing are good examples of this sort of property. Without a carefully drafted will, a beloved partner may be left emotionally and financially adrift. A will can provide unmarried couples with the opportunity to reinforce the importance of their non-traditional relationship, both to each other and to the world. If the threat of a hostile biological family is great, the couple may be well advised to get married, since a married spouse will be entitled to inherit if a will is declared invalid and the decedent declared interstate. A simple will generally provide for the disposition of tangible and intangible property and names an executor states LA Probate Law. Without positive directions and positive dispositions of property, beneficiaries may sue because of disputes. Wishes and hopes are known as “precatory” language and should be avoided.
Personal Property & Memorandum
One of the first paragraphs of a will should provide guidance for the disposition of personal property. Removing personal property from the remaining parts of the estate (the “residue”) protects it from being used to pay debts and administration costs. For non-traditional families, members should consider naming the other members as beneficiaries. The emotional toll of the death of a partner whose status is unrecognized is exacerbated when others come in to remove personal property that has been part of the partner’s home. Understanding a couple’s relationships with members of biological families is important expresses LA Probate Law. If there are family members who will be hostile to the survivor of the couple, an attorney may want to add language to the estate planning documents that limits the involvement of those family members or consider other ways of transferring assets to the survivor instead of relying on a will. The advantage of a written memorandum is that the testator can draft it without the help of an attorney and it can be changed daily, if so desired. The disadvantage is that distribution of personal property in accordance with the dictates of the memorandum is not enforceable in court. It is simply guidance and an executor can choose to ignore the directions. If there are particular pieces of identifiable property that the testator wants to leave to certain people, these items and their intended recipients should be included in the language of the will. These gifts will then be enforceable in court.
If the non-traditional family includes minor children, a will should provide for a guardian, as well as an alternate. However, nomination of the guardian is subject to court appointment to determine if the placement is in the best interest of the children. Naming a partner as the guardian will not extinguish the parental rights of another legal parent of the child, but it will give the partner standing to challenge placement of the children with others who may have had limited involvement in their lives or if that placement represents further disruption in the lives of the children. Anyone nominated as a guardian should be consulted before the nomination is included in a will say LA Probate Law. When one partner wants to make a provision in his or her will for the minor children of the other partner, consideration should be given to who will control the children’s assets while they are still minors. If the other parent, who is not the partner, will control the assets, the testator may want to consider putting the funds in trust to be released upon the children reaching a certain age. A trust might also be appropriate where a parent wants to ensure that the children are the ultimate beneficiaries, but has the trust assets working for the surviving partner during his or her lifetime.