Some estates are more complicated than others. Perhaps there's a new marriage or children from a new spouse. Or maybe there are atypical business assets such as a nonprofit or an unusual tax situation. But how do you know when you should consult an attorney?
While doing your own research is an excellent way to become more informed of your options, there are some situations in which hiring an attorney is usually a good idea.
You Want to Your Estate to Go to Adopted Children, or to Natural Children in Differing Amounts
If you plan to leave part of your estate to adopted children or stepchildren, your last will and testament needs to clearly specify this, especially if you are including natural children together with adopted children and/or stepchildren.
If your last will broadly states that you gift some part of your estate “to my children,” without defining who is to be considered your child, it may not be clear to the executor whether adopted children were meant to be included.
The same holds true for stepchildren, foster children, godchildren, or other children who you may consider your children but are not considered your children under the law. If you want these individuals to receive some of your estate, you should specifically identify them in your will them as well as what there are to receive from your estate.
Similarly, if you want to completely disinherit one or more children, or leave unequal shares to your children, that too, needs to be very clearly stated in your last will. If someone is disinherited or left less than his or her siblings, the validity of the will may be challenged in court by the disappointed party. If your intent is not clearly stated, that challenge could be successful. Having an attorney clearly draft a will that has little room for misinterpretation could help ensure that your wishes are honored.
You Want to Use Irrevocable Trusts
An irrevocable trust is a trust which cannot be revoked once papers are signed without a court order and or the consent of the trust maker (called a “Grantor”) and all of the trust's beneficiaries, depending upon the laws of the state in which the trust is managed.
These trusts are most commonly used to receive gifts for the benefit of a spouse, children, or grandchildren while providing tax benefits to the grantor. By creating an irrevocable trust, the grantor gives up control of the assets to the trustee in order to avoid estate taxation of the trust property and protect the assets from the grantor's creditors.
It is crucial that an attorney creates these trusts because unless that the proper separations between trustee and grantor are built into the trust, the trust property may be subject to estate taxation and claims from the Grantor's creditors. Speaking to an attorney in advance of preparing the trust will provide valuable insight as to whether an irrevocable trust is the correct estate planning tool for your specific needs.
Many people choose to leave their assets to individuals directly, with no conditions. That can be relatively simple to accomplish. If you take a more complex approach, for example, holding the assets in trust until certain conditions are met, creating a trust for the life of a beneficiary, or creating a trust for a disabled beneficiary, the advice of an attorney could help.
These are just a few of the not-so-straightforward situations when hiring an attorney can be valuable in your estate planning. Every family is unique and has different objectives—and on top of that, every state has different laws on estate planning matters.
Although you may be able to take care of many matters on your own, in some situations, even a brief meeting with an attorney can eliminate confusion and help you move forward with confidence.