The only son of late philanthropist Brook Astor had his inheritance cut in half under the terms of the settlement reached in the five-year legal battle over the control of his mother’s estate. Anthony D. Marshall, currently age 87, was also stripped of his control over the sizable charitable contributions his late mother’s estate will soon begin making.

Brooke Astor died in 2007 at the age of 105. However, after allegations arose in 2006 claiming that her son had been mishandling her affairs as her legal guardian, the question of who would run her estate after she died has been in doubt. Much of that doubt was removed after Mr. Marshall was convicted of stealing from his mother three years ago and sentenced to one to three years in prison. Though he is currently appealing the conviction, the terms of the settlement brokered by the New York office of the Attorney General will apply regardless of the outcome of the appeal.

Under the terms of the settlement Mr. Marshall will receive $14.5 million of the original $31 million inheritance he was going to receive. He will also play no role in the creation or management of the Brooke Astor Fund for New York Education. This fund will be started with a $30 million endowment from the Astor estate. The rest of the estate funds will go towards other charitable groups such as Central Park and city playgrounds located in New York City.

The Hammond Law Group is a member of the American Academy of Estate Planning Attorneys.

If you have a social media account, e-mail addresses or other digital assets, you may have occasionally wondered what would happen to these things in the event you die. While you can generally grant someone else access your accounts, this access may be contrary to the policies of the website that hosts or owns the digital asset. Currently, there are no specific laws that address this digital estate planning issue.

However, Nebraska lawmakers have recently introduced a bill that would make it the first state to adopt a law directly addressing digital estate planning issues. The proposed law states that an estate executor, known as a personal representative, will have the authority to not only access a decedents social media and e-mail accounts, but will also have the ability to control and dispose of these assets as he or she sees fit.

Currently sites like Twitter, Google, and Facebook have varying procedures involved when a member dies leaving behind an account. For example, Facebook will memorialize a deceased person’s account once it learns that the person has died, while Google and Twitter require notification from an executor that includes a copy of the death certificate plus other forms of notification.

Though the bill has not been approved or signed into law, it appears that this is the first kind of legislation introduced into a state legislature anywhere in the country. As digital assets become increasingly prevalent in estate planning issues, it appears likely that other states may follow with different forms of legislation.

The Hammond Law Group is a member of the American Academy of Estate Planning Attorneys.

Since dying at the age of 104 in May, 2011, heiress Huguette Clark’s estate has drawn widespread interest as it has gone through numerous twists and turns. With an estimated $400 million inheritance left over from her industrialist father’s success during the Gilded Age, Ms. Clark was the sole heir to one of America’s greatest fortunes. Her few remaining family members are now alleging that those around the reclusive heiress during the end of her life committed fraud in their handling of her affairs.

At issue is the more than $50 million that Ms. Clark left to her personal nurse during her life and through her final last will and testament. The nurse worked for Ms. Clark for about 20 years and, as that time progressed, received almost $26 million in gifts from the heiress including five houses and a $200,000 luxury Bentley automobile.

The family members are contesting the will on the basis that Ms. Clark was not able to understand the nature and extent of her property at the time she made it. They argue that a previous will should apply to her estate, one that leaves the family an inheritance. The will which they are contesting completely cuts the family out.

However, the two wills were created within six weeks of each other. If the court determines that one is invalid because of Ms. Clark’s inability, it may very well determine that the previous will is also invalid. In this situation, the family members would stand to inherit everything because that is what the New York intestacy laws require.

The Hammond Law Group is a member of the American Academy of Estate Planning Attorneys.

Probate is the legal process involving the administration of a deceased person’s will or the estate of a deceased person without a will (known as dying intestate). Probate is carried out within a Probate Court and is the process in which:

• A will is declared valid or invalid;
• Property is transferred from the deceased to an heir or a beneficiary named in a will;
• An executor of an estate is given legal standing to handle the estate’s business;
• The liabilities and bills of the estate are paid;
• The assets of the estate are distributed.

Where does a probate attorney fit into the process? A probate attorney, also referred to as an estate attorney, can help prepare an estate plan that helps avoid probate, as the probate process can be costly and complex. They can also assist the executor, the person named as the estate’s administrator, with tasks that are faced in probate, such as:

• Preparing and filing probate forms and paperwork;
• Advising and assisting with the sale of the estate’s assets;
• Advising and assisting with the payment of the estate’s liabilities and bills;
• Requesting permission from the probate court for various actions as required under Colorado law;
• Obtain a taxpayer identification number for the estate and file the final tax return;

Some probate lawyers are also willing to be named as the executor of the will. In this case, they are paid a fee to oversee the distribution of assets. The fee for serving as the executor of a will is separate from the fee for preparing a will.

A probate lawyer can be hired by either a person making a will or those who are named within the will. The attorney will have an ethical duty to represent the wishes of his client to facilitate the probate process and act within the best interest of their client both before and during the probate process.

The Hammond Law Group is a member of the American Academy of Estate Planning Attorneys.

Did you know that the laws of the state where real estate or tangible personal property is physically located will govern what happens to out of state property after you die? Most people assume the laws of the state where you live at the time of your death dictate the administration of your estate, but this is not the case. In fact, property located within another state is subjected to a secondary probate process called ancillary probate that takes place in that state.

Ancillary probate is the probate of property in a state other than the state where you live. If, at the time of your death, you own real estate or other property in your name alone, a probate will be necessary in each state where the property is owned and/or located. This is necessary to transfer the ownership of the property and clear the title, as well as advise creditors that may be located in the state.

One of the biggest drawbacks of ancillary probate is the added cost of having to administer more than one probate estate, including multiple court fees and accounting fees if the estate is extensive. Another drawback of ancillary probate can occur if a person dies without a valid Will. Because the intestacy laws, the laws which dictate the distribution of property for a deceased with no will, differ from state to state, it is possible that the heirs of an intestate estate could be different in the state of the primary probate proceeding versus the state of the ancillary probate proceeding.

The best way to minimize the impact of Probate is to work with an estate planning attorney. Spending money today to establish a valid Will, Trust, or other estate planning documents, as well as properly titling assets, can save your estate substantially when it is time for probate proceedings.

The Hammond Law Group is a member of the American Academy of Estate Planning Attorneys.

Mention estate planning to anyone and most likely they will associate it with avoiding probate. Probate is the legal process of ‘settling’ the estate of a deceased person, and it can take months, even years, for more complex estates. In Colorado, the average estate spends 9-24 months in probate. There are actually three different types of probate proceedings in Colorado:

• A small estate proceeding for estates valued at under $50,000 that have no real property,
• An informal proceeding for uncontested estates, and
• A formal proceeding for contested estates and those with invalid or questionable wills.

So why would this process take a year or more? There are several tasks that take place during probate, and some of them require waiting times, legal notifications and property inventories. For example, in a typical probate proceeding, the following will take place:

• Opening a bank account for the estate so bills can be paid;
• Identifying the deceased’s creditors, locating them and notifying them of the death;
• Identifying heirs and beneficiaries, locating them and notifying them of the death;
• Identifying and inventorying the property that was owned by the deceased;
• Filing a final tax return for the estate and paying any estate taxes that may be owed;
• Paying off creditors;
• Distributing property to heirs according to the state law if there was no will or beneficiaries that are named within a will.

As you can see, these tasks will not only take time, but they are extremely detail oriented. There are a number of documents that must be filed with the probate court, many of which relate to the above tasks. The process is not horrible, but you must be patient. A probate attorney can help you through this process, as well as help you put together an estate plan that will allow your property to avoid probate if you would prefer.

The Hammond Law Group is a member of the American Academy of Estate Planning Attorneys.

Whether your retirement account is a 401K or an IRA, it’s probably going to be one of your larger assets upon your retirement. In fact, a retirement account is an important component of a comprehensive estate plan, but what happens to the balance of your account upon your passing?

Beneficiaries

When your retirement account was set up, you were required to fill out a beneficiary form. The person named as the beneficiary is entitled to the remaining balance of the funds within your account. It’s important to make sure this information is kept up to date, as you are bound to go through some major life changes over the decades this account may have been in existence.

Avoiding Probate

One of the primary benefits of any estate planning tool that has a named beneficiary on a form is avoiding probate, the legal process that administers an estate. When probate is avoided, the funds are available more quickly, and can address the immediate needs of the beneficiary.

Spousal Rights

Many retirement plans require that a spouse be named as the primary beneficiary. Some plans may allow you to name another beneficiary as long as your spouse’s permission is given on the beneficiary form and it is signed and notarized. This is yet another reason to ensure that all beneficiary forms, whether for retirement accounts or life insurance policies, be reviewed and updated upon major life events, such as marriage, divorce, birth of a child or even the purchase of a home.

Consequences to a Beneficiary

Your named beneficiary will have choices in how they handle the account, and these choices will vary depending on whether or not the beneficiary is a surviving spouse. These choices normally include:

• Rolling the funds into their retirement plan (for surviving spouses);
• Cashing out the account in full; or
• Electing to continue to treat the account as the deceased spouse’s account.

An estate planning attorney can provide the best advice for ensuring that your retirement plan meshes with your estate plan, as well as your estate planning goals.

The Hammond Law Group is a member of the American Academy of Estate Planning Attorneys.

In every state there are laws that pertain to what makes a Will valid. In Colorado, a Will must be signed by the testator, the person who had the Will drafted, as well as two witnesses. Each witness must either see the testator sign the Will or be told by the testator that the signature on the Will is his or hers and they must sign the Will in the testator’s presence as well as in the presence of the other witness.

When the testator dies, the Will is authenticated in a Probate Court and the estate is then administered. A self-proving Will allows the witnesses to avoid a court appearance to re-affirm the signatures within the Will. It also provides an additional layer of authentication that can help your beneficiaries avoid a long, drawn out probate process. A self-proving Will can be particularly helpful when one or more of your witnesses cannot be located or they have since passed away.

A self-proving Will, or a self-proving affidavit attached to a Will, acts as a substitute for the live testimony of each of the witnesses. It simply certifies that the witnesses and testator properly signed the Will. Since the witness swears an oath during the signing of the affidavit, it is presumed to be truthful and is used in lieu of live testimony, which is not only convenient, but allows a more timely validation of the will. The self-proving affidavit is normally signed at the same time as the signing and execution of the Will.

Working with an estate planning attorney not only ensures your estate planning documents are valid and legal, but ensures that your family’s needs and goals are met within the estate plan.

The Hammond Law Group is a member of the American Academy of Estate Planning Attorneys.

One area of expertise for an estate planning attorney is probate, which is the legal process involving the administration of a deceased person’s will or the estate of a deceased person without a will (known as dying intestate). Probate is carried out within a Probate Court and varies by state. In Colorado, probate is divided into three types:

• Small estates worth under $50,000 with no real property;
• Informal probate for uncontested estates; and
• Formal probate for estates that are contested and/or have invalid or questionable wills.

The specific tasks that are carried out in the probate process include:

• Declaring a will valid or invalid;
• Transferring title of property from the deceased to an heir or beneficiary;
• Giving an executor of an estate legal standing to handle the estate’s business;
• Paying off liabilities of the deceased’s estate;
• Distributing the assets of the estate.

Often the purpose of a comprehensive estate plan is to help avoid the costs and time of a complex probate process, but probate cannot be completely avoided with a will. All wills must be probated in Colorado if you own real estate or have more than $50,000 of property without beneficiary designations, but the involvement of the probate court varies by the complexity and size of the estate.

There are ways to avoid having your family going through probate, which helps keep the administration process shorter and less expensive. Some choose to use a revocable living trust instead of a will to dispose of their property upon death. Assets transferred to the revocable living trust before a person’s death are not subject to probate and can be distributed upon the their death without probate. However, the trust only controls assets which have been transferred to the trust during the deceased’s lifetime and, therefore, a person should still have a will to dispose of any assets which—either intentionally or inadvertently—are left out of the trust.

While probate can be costly and complex, an estate plan can significantly simplify and reduce the costs of this process.

The Hammond Law Group is a member of the American Academy of Estate Planning Attorneys.

In order to distribute your assets to your heirs after you pass on, your estate typically must go through a legal process known as probate. This can be a lengthy and expensive process, so many people look for ways to avoid – or at least streamline – the probate process.

A trust is one way to do this but you can also use payable on death (POD) accounts to bypass probate on certain assets such as bank and investment accounts.

Also called transfer on death (TOD) accounts or trust for accounts (ITF), these accounts allow you to include a beneficiary designation as part of the account documents. After your death, your beneficiary can simply go to the bank or the investment company with proof of your death (a death certificate) and can access the account.

Disadvantages of Payable on Death Accounts

Unlike a typical joint account, the beneficiary of your POD account cannot place any claims on the funds in the account while you are alive. However, the method is not without drawbacks:

• When you are naming a single beneficiary of your POD account, you are in effect disinheriting your other heirs which can create a rift in the family.
• If your beneficiary dies before you and you fail to update your account, then the account will be added to your estate at the time of your death and go through probate. If you have named two or more beneficiaries and the death of one beneficiary precedes yours, the bank/investment company will face a problem in dividing the account.
• If you later decide to make changes to your POD account, such as shifting it into your Revocable Living Trust, some institutions might want you to get the consent of the beneficiaries as well.
• Naming a beneficiary does not allow anyone to manage your account on your behalf if you become incapacitated, so your family may have to go through a conservatorship/guardianship process to manage your account and other assets.

Ultimately, you should consult an estate planning attorney to determine the best way to title your assets and provide for your heirs.

The Hammond Law Group is a member of the American Academy of Estate Planning Attorneys.