What Is An Estate Planning Lawyer’s Role When Negotiating A Marital Settlement Agreement?
Video Summary
What role does an estate planning lawyer play in negotiations of a marital settlement agreement? Well, there’s any number of marital settlement agreements. There are marital settlement agreements that are entered into prior to the marriage, which is a pre-marital agreement. There are some that are entered into after the marriage for the parties to address each others’ rights and their spouse’s estate. And then there are the marital settlement agreements that are entered into in conjunction with a divorce proceeding. The estate planning lawyer will want to review the agreement to verify that the spouse of your client has waived their rights to claim a portion of your client’s estate in the event your client passes away or my client passes away.
That would include the waiver of the elective share that a spouse has to take 30 percent of my client’s estate. Also, as far as homestead is concerned, they waive their right to serve as a personal representative and also the right to any property that is acquired after the marital settlement agreement has been entered into and give full authority and latitude for my spouse to leave whoever they want to their property in their will or trust. And so that’s what you’re looking for whenever an estate planning lawyer looks at the marital settlement agreement, and I usually have asked a lawyer who does domestic relations to prepare these because they are tested much more stringently or could be set aside much easier or attacked in the event there’s a divorce proceeding.
So if it could pass, it will almost always pass the test of not being able to be attacked after death. So the estate plan lawyer is interested in seeing that the spouse of his client has waived their rights in his client’s estate to allow his client to leave his assets to whomever he would like, or as an alternative to be aware of what obligation he has to provide for his spouse in his will or trust. If you have any questions, well, give me a call at 727-847-2288.
- Published in Estate Planning, Videos
Ask Thomas Mitchell: What Documents and Information Do I Need to Gather Before Filling Out a Will?
Video Summary
Good afternoon. I’m Tom Mitchell, one of the partners here at Waller & Mitchell in New Port Richey. And I wanted to talk with you today for a few minutes about what you need to do before you come in to make out your will. Making out a will is very important and it’s part of your overall estate plan, so you need to go back over all of your various accounts, bank accounts, brokerage accounts, other personal property that you might have, jewelry, cars, get all that information together so that you know what you have. While you’re doing that, it’s very important to check to see how the asset is titled. If you have a beneficiary or it’s joint with some family member, you need to understand that that asset is going to be passed to that person by virtue of the titling.
So if you have in your will that you want your estate divided equally among your three children, but you’ve already put one child on most of the accounts, that one child is going to get most of the accounts and it’s not going to go equally to your three children. So it’s very important to know what those account statements say as to the titling. Bring all that information in. We’ll go over it with you and see what you need to do to make your estate pass the way you want it to, not just your estate through your will, but your overall estate.
This is Tom Mitchell from Waller & Mitchell. Our telephone number is 727-847-2288. We’re located in New Port Richey. Have a good day.
Should I Put My Homestead Property In My Revocable Trust?
Video Summary
Should I put my homestead property in my revocable trust? If you ask all the estate planning lawyers as to whether or not you should place your homestead property in the revocable trust, probably half of them would advise you not to do so and the other half would tell you that it is not a problem.
If you do put your homestead property in the revocable trust, you will avoid probate, and that’s one of the big reasons why people set up trusts. If you do put your homestead property in a trust, it may lose its protection from creditors unless you make specific provisions to leave your homestead property to an heir at law, and then it should continue to have protection from claims or creditors. Hopefully you don’t have more creditors than you do have assets so it wouldn’t be an issue.
But if you’d like to discuss that issue, please give me a call at (727) 847-2288.
Do I Still Own My Property if I Have Filed for Bankruptcy?
Video Summary
Do I still own my property if I have filed bankruptcy and have included the lien or the amount that I owe in the bankruptcy estate? The answer is, yes, you still own the property even after you’re discharged from bankruptcy. The bankruptcy simply discharges the debt, meaning that you no longer have personal liability for the promissory note. The lender still has a mortgage against the property. However, they must foreclose that mortgage in order to divest you from the title. So, you should not just walk away from the property even after a foreclosure in that you can retain the property until they complete a foreclosure action. So, you still own it until such time as they’ve completed a foreclosure action against your property.
If you have any questions about ownership of your property after you’ve filed a bankruptcy action, give me a call at (727) 847-2288.
- Published in Real Estate, Videos
Does a Trust Protect My Real Estate From Creditors?
Video Summary
Does a trust protect my real estate from creditors? I’ve heard from any number of people saying, “Oh, well, he put his property in his trust so the creditors could not reach them.” Well, this is a myth. If you have a revocable trust and you transfer your assets into your revocable trust, it does not protect them from creditors and creditors can reach them just as if you owned it in your individual name. So, by doing that, you haven’t accomplished anything. I suggest if you’re concerned about liability as far as, let’s say, a rental property, then I suggest that you get liability insurance or what you call an umbrella policy to protect you against any potential suits by tenants.
If you’re concerned about creditors reaching your property as a result of an automobile accident or something like that, an umbrella policy would also be the answer. Now, anytime the property has a secured lien, such as a mortgage, well, they’re able to foreclose the property no matter who owns the property and the lean take priority over any subsequent advances.
So, if you want to protect your property from creditors, give me a call at (727) 847-2288 and we’ll be glad to talk to you about how to protect your property from creditor’s claims.