Services

Wills

 

Q: What is a will and what can I do with it?

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A: A will is a vitally important written document that serves many purposes. With this document, you can make your express wishes known to your loved ones regarding how you would like your assets handled after your passing. Thinking about one's own mortality is not a pleasant endeavor. But when faced with the potential for misinterpretation and misrepresentation, making explicit your specific wishes for the end of your life is necessary. Creating a Last Will and Testament can spare your loved ones additional grief and ensure your intentions are known. 

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Estate planning is not just for the wealthy and elderly. If you have children or own a home, you need to have a will. In your will you are able to specify legal guardians for minor children in the event that you and your co-parent are both deceased. Taking this measure before the unthinkable should happen could save your loved ones from the costly and painful process of petitioning for the guardianship of your children. Additionally, altering language on property deeds can ensure that your home or other real property is transferred according to your designations. 

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Q: What other papers would I need for my end of life plans?

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A: Often, when clients are making their Last Will and Testament, it brings up many questions about how to convey their wishes regarding their end of life plans. Using a Power of Attorney instrument, you can choose someone you know and trust to make decisions about your finances and assets should you become incapacitated. Further, you can make a Health Care Power of Attorney document designating a representative to make decisions about your health and medical care in the event that you are unable to make such decisions for yourself. Finally, with a Living Will directive, you can specify the medical life-saving and sustaining measures to which you consent to receiving to protect your autonomy regardless of the circumstances.

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Q: Should I still get a will if I am unmarried or without children?

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A: Yes, absolutely. Estate plans can be as varied as the people making them. Take for instance LGBTQ+ couples: there used to be special concerns and considerations when creating estate plans for members of this community, by virtue of the fact that same-sex and LGBTQ+ couples couldn't legally marry in the majority of the country. However, in 2015, the historic Supreme Court decision in Obergefell v. Hodges made same-sex marriage legal in all 50 states. As such, the legal benefits of marriage were extended to same-sex couples across the country.  This sweeping legislation meant that estate planning for married same-sex and LGBTQ+ couples would now look largely the same as estate planning for any other married couple. Moreover, being married and dying without a will or living trust in Indiana would entail your surviving spouse and children inheriting your estate.

 

But, for people who are single or not married to their partners, dying without a will or living trust would mean that your state's laws of intestate succession would determine who inherits from you. In Indiana, if you pass without a legal spouse or child(ren), your parents and siblings will inherit your estate. Rather, unmarried partners, chosen family members, non-legally recognized children, or friends would not receive any portion of your estate, nor will they take part in the probating of your estate. Hence the urgently important need for single people to make estate plans to ensure that their wishes for the posthumous distribution of their assets are known and fulfilled.

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Trusts

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Q: What is a trust?

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A: In very simple terms, a trust is a fiduciary relationship in which one party, known as a "grantor," gives another party, the "trustee," the right to hold title to property or assets for the benefit of a third party, the "beneficiary." Trusts are established to provide legal protection for the grantor's assets, to make sure those assets are distributed according to the wishes of the grantor, and in some cases, avoid or reduce inheritance or estate taxes. Furthermore, trusts can be used to avoid probate proceedings in court as are required when using wills. Trusts are highly versatile with regard to what one can do with them, but generally trusts are vehicles used to protect assets and direct them into the right hands in the present and in the future, long after the original asset owner's death.

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There are several different kinds of trusts that can provide for those establishing trusts in the present, as well as for their beneficiaries in the future. For example, Living Trusts, or "inter-vivos trusts," are trusts in which an individual's assets are provided as a trust for the individual's use and benefit during their lifetime. Then said assets are transferred to their designated beneficiaries at the time of the individual's death. The individual who established the trust has a successor trustee who is then in charge of transferring the assets after the passing of the original owner of the assets.

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Q: Under what circumstances should I consider establishing a trust?

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A: If you are a primary caregiver of a special needs individual, or wish to financially provide for a special needs person, in the present, as well as after your passing, trusts allow you to dictate the exact amount and disbursement of assets for the person's care. Similarly, if you have minor children, a trust can be established ensuring that your children will be financially provided for in the event that that you and your co-parent are both deceased. Finally, trusts are often used by individuals wanting to structure their estates in a way that will save their loved ones the financial burden of going through probate after their passing. 

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If any of these circumstances reflect your needs or the needs of your family, consider speaking to us about how a trust can benefit your estate planning.

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Other Estate Planning Services 

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Q: My parent(s) are entering a skilled nursing facility. What must happen to their assets to qualify for Medicaid?

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A: Determining how to distribute or structure one's assets to qualify for Medicaid's coverage of a nursing facility stay is an overwhelming task to face alone. Simply trying to define "income" or "assets," let alone trying to figure out what qualifies as an "asset," and what is exempt from these requirements is a staggering undertaking. And it becomes doubly taxing when having to figure in a spouse's contribution to these numbers. When a senior parent or loved one is in need of skilled nursing care, you want to focus your time and energy towards making their transition comfortable, not on worrying about if you have to give away all of their possessions to pay for it. 

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Our attorneys are well-versed in the rules, exemptions, and solutions for making specific estate plans around Medicaid for seniors. Schedule a consultation and let us help your family navigate through this transition without the confusion and stress. 

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Q: What if the estimated value of the assets in my estate are over the estate tax exemption amount?

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A: David Smith has been advising individuals, families, family-owned businesses, and charitable foundations in the planning and administration of trusts and estates for 40 years. For those clients looking to preserve and enhance their wealth for current and future generations, there are a myriad of options available. The extensive experience and knowledge of estate, trust, and tax laws our attorneys have can help you take advantage of planning opportunities prompted by tax law changes and minimize huge tax bills both today and in the future.

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Q: What are some other estate planning services Smith Law Office can provide?

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A: Our attorneys have been advising clients in Southern Indiana for over 5 decades on the following matters, among many others:

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• Advance Directives

• Asset Protection

• Business Succession Planning

• Disputed Wills & Contested Estates​

• Durable Powers of Attorney

• Elder Law

• Estate Administration

• Guardianships of Minors & Adults

• Healthcare Directives

• Incapacity Plans

• Medicare and Medicaid Planning

• Miller Trusts

• Planning with Non-Probate Assets

• Probate

• Probate Litigation

• Real Estate Law

• Review and Revision of Existing Estate Plans

• Revocable and Irrevocable Trusts

• Special Needs & Supplemental Needs Trusts

• Trust Management