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What you might expect if you die without a will

A will is one of the most common legal documents around. It serves the very useful purpose for the will's maker of expressing clearly to the state and to potential heirs how an estate should be handled upon the author's death.

Many would likely agree that a will is such a common sense device to ensure that your desires are known and that your successors are relieved of difficult decisions that it is hard to fathom why everyone doesn't have one. Yet, the truth is that many people do not. Even when a will is in place, it often isn't properly updated to reflect changes of life that have occurred.

How does bankruptcy affect your children?

Bankruptcy can be an intimidating process when you do not know what to expect. You worry about your current and future financial security, you worry about losing property, you worry about how you are going to rebuild your credit, and you may even wonder how it will affect your children.

The good news is that all these worries can go away with proper planning with an experienced attorney. You can get through the proceedings and start rebuilding credit, retaining most assets and preparing for any consequences for your children.


There are multiple ways to attempt to avoid probate including the use of beneficiary designations on life insurance policies, retirement accounts, and other similar accounts. Other ways to avoid probate are through joint ownership, however, joint ownership may not be the best approach in some situations (particularly between a parent and a child). Probably the most effective and smoothest way to avoid probate and to make sure your estate is handled properly is through the use of a Revocable Living Trust.


Most parents understand how important it is to name Guardians for their minor children through a Will for the unfortunate situation of both parents passing away. However, many parents put off doing their Wills because they believe that their extended families will simply care for their children and work out the details if that situation ever arose. Most of us believe that such a situation will never happen to us, and we don't like to think about these terrible events occurring. Yet it is important to plan for these events because we want to make sure our children are adequately taken care of if something were to happen to us - and it is much easier and less stressful for your family if you have laid out Guardians through your Will.

Probate – What is Involved and Can I Avoid It?

Many people believe that having a Will avoids the probate process entirely.  Unfortunately, those individuals are mistaken.  Every person should have a Will in their estate plan in order to name a person to handle your estate when you pass away (Executor); state how you want your assets to be distributed; and to name guardians for any minor children you may have.  However, if a Will is your only estate planning tool, then the person you have named as Executor may have a lot of work on their hands during the probate process.

Why You Should Know About Portability in Estate Planning and Estate Administration

What is Portability?

Portability first came into play at the end of 2010 with the passage of the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010. Then at the beginning of 2013, with the passage of the American Taxpayer Relief Act (ATRA), the portability of the estate and gift tax exemption between married couples became permanent. Basically, portability allows the unused tax exemption of the first spouse to pass away to be used by the surviving spouse at his or her death. Thus, it is a way to avoid possible estate taxes.

The Importance of Portability

In 2014, the federal estate and gift tax exemption is $5.34 million. This means that a person can pass up to $5.34 million at their death without being subject to the estate tax (although one must also take into account any gifts during the person's lifetime as well that were above the annual gift exclusion). Thus, even if your personal estate in under $5.34 million, if you were to pass away, and all of your estate goes to your spouse, their estate could grow past the $5.34 million mark and then when they pass away, there could be estate tax consequences.


Let's use an example. Let's say that Husband has assets in his sole name (whether through life insurance, bank accounts, real estate, etc.) that are equal to approximately $4 million. Wife has assets in her sole name that are equal to approximately $2 million. If Husband were to pass away first, and his estate passes to his Wife, her estate is now worth $6 million - which is over the current estate tax exemption amount. Portability allows the Wife to obtain and use the unused portion of the Husband's estate tax exemption when he passed away. He could have passed up to $5.34 million if he passes in 2014, however, he only passed $4 million. Thus, there is $1.34 million of his exemption unused. Portability allows the Wife to take that $1.34 million of unused exemption and add it to her exemption - thus, increasing her possible exemption in 2013 to $6.68 million. Thus, if she were to pass in 2014 with the same approximate estate of $6 million, she would have avoided the estate tax.

How to Claim Portability

In order for the surviving spouse to claim the unused portion of the deceased spouse's estate tax exemption, the executor of the first spouse's estate must timely file Form 706, the United States Estate Tax Return and elect portability. This form must be filed within 9 months after the first spouse's date of death.Any time you are handling someone's estate after they pass away, it is wise to consult with a probate attorney, such as the attorneys at The Law Office of Deborah N Arthur, in order to ensure that you are handling probate correctly and taking advantage of all considerations including the possibility of portability.Contact us at www.deblaw.com ; 703-658-6050 ;  or [email protected] blog is only for informational purposes. Please remember this is not intended as legal advice and does not create an attorney-client relationship. Every case is special and more information would be needed to provide you the best legal advice possible.
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