Wills, Trusts and Estate Planning Attorneys
For many, thinking about the future means planning a career, perhaps starting a family and enjoying life while not taking the time to consider what will happen if you become ill or disabled, or if you were to suddenly pass away. At Jones & Cook Attorneys at Law, we provide individuals in Missoula, Butte, Helena, Great Falls, Bozeman, and across Montana with sophisticated estate planning, including the preparation of wills, trusts, and other essential services. Jones & Cook accepts cases statewide in both Montana and North Dakota. Contact us for a Free Consultation with an experienced attorney, call (406) 543-3800 today.
One common misconception of many individuals is that Estate Planning is only for the wealthy. It is, however, essential for everyone, regardless of financial status, in order to protect oneself and provide for loved ones. We will work closely with you in developing a comprehensive personalized plan to provide you with peace of mind.
At Jones & Cook, our Montana Estate Planning attorneys are dedicated to ensuring the well being of our clients, protecting the wealth they have acquired over a lifetime, and ensuring their wishes are carried out in the event of Death or Incapacity.
We represent Trusts, Estates and the affected parties through the Probate process. We also assist our clients in planning for Long-Term Care, both for you and your dependents, and we are well-versed in federal Medicare and Medicaid laws and regulations. We also routinely analyze the Estate, Gift and Income Tax consequences of Estate Plans to minimize tax costs and prepare estate income tax returns.
By not having a well thought-out Estate Plan, the courts will appoint someone to make decisions about your Healthcare and the distribution of your Assets in a way that may not agree with your wishes.
We offer all our clients compassion, knowledge and a superior level of personal service. If you need advice about Estate Planning in Missoula, Bozeman, Billings or throughout Montana and North Dakota, call Jones & Cook Attorneys at Law today at (406) 543-3800.
Our Attorneys Can Help You Prepare for the Future
Frequently Asked Questions
Many people assume that state law will appropriately distribute their property to family members. That is true to a certain extent, however, you give up a lot of rights if you fail to plan. For instance, an Estate Plan can help you ensure that your intentions for your assets are met, prevent disputes, reduce stress for your family at a difficult time and minimize or eliminate estate taxes.
Think about the arrangement you want for the distribution of your assets and for the care of your family, children and pets. Establish a relationship with the agents you appoint to handle your property and care for your family. Be sure to choose someone you know will carry out your decisions and perhaps make the right decisions for you when you cannot. Finally, you’ll need to prepare all the legal documents that will express your preferences in health care treatment, life-prolonging care decisions, etc.
Yes, it can, to an extent. When you devise assets through a Last Will and Testament or leave no will and make no other arrangements for your assets, Montana’s default probate process kicks in. But many people would like to avoid the full probate process, given that involving a probate court and potentially a court-appointed executor can be time consuming and expensive. Since probate proceedings happen in court, probate can also be invasive—publicly airing details of assets a family might not be comfortable sharing.
Some estate planning options include trusts; joint tenancy with right of survivorship; Payable-on-Death (POD) bank accounts; and Transfer-on-Death (TOD) securities and deeds. Exercising these options prevents named assets from going through probate and creates a mechanism for making sure an asset goes to whomever you intended. Even if your will must go through the probate process, however, for reasons such as having courts sort through family disputes, careful estate planning can make the process easier on all involved. Jones & Cook Attorneys at Law will counsel you on your estate planning options and make sure it’s done right.
A will is a written document in which you direct what will happen to property you alone own after your death (called your estate). It names the persons whom you wish to benefit or protect (called beneficiaries), and designates someone (called an executor) to carry out your directions as to the distribution of your property.
You can legally prepare your own will, it can even be handwritten. This type of will is known as a “holographic will.” In Montana, your handwritten will must be signed by you. Your signature must also be located on any material provisions, and no witnesses will need to be present for the signing of your will. Because the laws surrounding wills are somewhat complex, it is usually advisable that a lawyer is utilized to prepare your will. The fees associated with the preparation of the will very depending upon the complexity of your estate. More complex estates will be more costly to prepare.
For your will to be valid, you must be at least 18 years old and of sound mind. It has to be in writing, there must be an appointed executor, and it will need to be signed by you and two witnesses. Although it’s not required for wills to be notarized, doing so can help them move through probate more smoothly.
If you don’t have a will in place to provide instructions for the distribution of your property, your state’s laws will determine how it will be dispersed among your family members. The state will also decide who should have guardianship over your minor children.
Your will can be modified at any time as long as you are deemed competent to make decisions. It’s a good idea to review this document every few years to make certain everything is still as you desire. It should be updated whenever you acquire new assets or your circumstances significantly change; for example, if you get married or start a business.
When you make a will, you will appoint an executor to make sure everything is carried out to your wishes. Their responsibilities will include notifying the right parties, collecting your property, distributing your assets as instructed, receiving claims against your estate, paying the claims you owe, and selling your property if necessary.
Yes. A will may be revoked or changed at any time by the maker. Very specific legal requirements must be met in order for the revocation or changes to be effective. An amendment to the will normally is referred to as a codicil.
A codicil is a legal document that changes specific provisions of a last will and testament but leaves all the other provisions the same. You can modify, update, or even completely revoke your last will and testament at any time as long as you’re mentally competent.
If you do not have a will, the court distributes your estate to your relatives in a certain order set out by law. This is called “Intestate Succession.” The law will treat all of your property the same. There are no special provisions for heirlooms, jewelry, or any family businesses. If your legal heirs do not agree amongst themselves to a specific division of your property, then it may be necessary to sell property in order to achieve the distribution of value required by law.
If you do not leave a valid will, your property will pass to your spouse, children, or both, but the shares they take depend upon whether or not either you or your spouse have children of a previous marriage, whether you have surviving parents, and the overall size of your estate. If you are not survived by a spouse or child, your estate will pass to your next of kin, and if you have no next of kin then your estate will be passed on to the State of Montana. These “default” provisions may be overridden by a valid will.
If you do not leave a valid will, your children will receive their inheritance no later than the age of 21, which, in many cases, may be too young. If you do not name a guardian in your will and if there is no surviving parent, the court will appoint a guardian for your minor or disabled children.
Joint tenancy is a form of property ownership in which a husband and wife, or others, own property jointly with the rights of survivorship. This means that when one joint tenant dies, the property will pass automatically to the surviving joint tenants, subject to filing an inheritance tax return and paying any inheritance tax liability that may exist. Your will has no control over property which you own as a joint tenant with others. This may be useful in some situations, but may also cause unnecessary taxes. It is not advisable for all situations. Joint tenancy disposes only of that particular property. It makes no provision(s) for anything else. Payable on Death (POD) and Transfer on Death (TOD) accounts also are a means of transferring property to a surviving designated beneficiary. POD and TOD accounts operate very much like joint tenancy, but the beneficiary has no interest in the effected property while you are alive. As with joint tenancy, these forms of holding property may be useful in some situations, but also may unnecessarily create tax liabilities, and accordingly should be used only with professional guidance in appropriate circumstances.
No. Life insurance policies deal only with the proceeds payable to the beneficiaries under the policy and generally are not controlled by your will. Life insurance trusts are sometimes used to assure desired use of insurance proceeds and for estate tax savings.
A Last Will and Testament dictates the way that that your assets will be distributed and utilized following your death. A Living Will states your wishes regarding life support in the event that you are in a persistent vegetative state or irreversible coma and cannot communicate your wishes. They are very different documents. After death, the Living Will can grant consent to an autopsy, bequeath anatomical gifts, and direct the disposition of your remains (whether you wish to be buried, or cremated, or neither.) Most other posthumous decisions are addressed in a Last Will and Testament.
A trust is an arrangement under which one person, called a trustee, holds legal title to property for another person, called a beneficiary. You can be the trustee of your own living trust, keeping full control over all property held in trust.
The big advantage to making a living trust is that property left through the trust doesn’t have to go through probate court. In a nutshell, probate is the court-supervised process of paying your debts and distributing your property to the people who inherit it.
Yes, a will is an essential back-up device for property that you don’t transfer to yourself as trustee. For example, if you acquire property shortly before you die, you may not think to transfer ownership of it to your trust — which means that it won’t pass under the terms of the trust document. But in your will, you can include a clause that names someone to get all of the property that you haven’t left to a specific beneficiary. If you don’t have a will, any property that isn’t transferred by your living trust or other probate-avoidance device (such as joint tenancy) will go to your closest relatives in an order determined by state law. These laws may not distribute property in the way you would have chosen.
A basic living trust isn’t much more complicated than a will, and you probably won’t need to hire a lawyer. With a good self-help book or software program, you can create a valid Declaration of Trust (the document that creates a trust) yourself. If you run into questions that a self-help publication doesn’t answer, you may need to consult a lawyer.
No. A will becomes a matter of public record when it is submitted to a probate court, as do all the other documents associated with probate — inventories of the deceased person’s assets and debts, for example. The terms of a living trust, however, need not be made public.
Making a living trust work for you does require some crucial paperwork. For example, if you want to leave your house through the trust, you must sign a new deed, showing that you now own the house as trustee of your living trust. This paperwork can be tedious, but the hassles are fewer these days because living trusts have become so common.
No. A creditor who wins a lawsuit against you can go after the trust property just as if you still owned it in your own name. Generally, after your death, all property you owned — including assets held in a living trust — is subject to your lawful debts. For example, if your house is held in trust and passes to your children at your death, a creditor could demand that they pay the debt, up to the value of the house. Ownership of real estate is always a matter of public record, so creditors can always find out who inherited real estate. It can be more difficult for creditors to know who inherits other property, however (because a trust document, unlike a will, is not a matter of public record), and they may not bother tracking it down. On the other hand, probate can also offer a kind of protection from creditors. During probate, known creditors must be notified of the death and given a chance to file claims. If they miss the deadline to file, they’re out of luck forever.
Property you transfer into a living trust before your death doesn’t go through probate. The successor trustee — the person you appoint to handle the trust after your death — simply transfers ownership to the beneficiaries you named in the trust. In many cases, the whole process takes only a few weeks, and there are no lawyer or court fees to pay. When all of the property has been transferred to the beneficiaries, the living trust ceases to exist.
A revocable living trust does not normally need its own TIN (Tax Identification Number) while the grantor is still alive.
During the grantor’s life, the trust is revocable and taxes are paid by the grantor as an individual, using the grantor’s SSN (Social Security Number). In other words, when an institution requests an SSN or EIN (Employer Identification Number) for trust property, the grantor just uses his or her own SSN. When the grantor dies, the living trust becomes irrevocable and the successor trustee will get an EIN from the IRS to pay the trust’s taxes.
For shared property in shared living trusts, the grantors can use either person’s SSN. When choosing which SSN to use, keep in mind that income on trust property will be reported through the SSN you select. This won’t matter to couples who file taxes jointly, but it could make a difference to couples who file taxes with separate returns. For individually owned property in a shared living trust, use the owner’s SSN.
A family trust is a trust created to benefit persons who are related to one another by blood, affinity, or law. It can be established by a family member for the benefit of the members of the family group. Family trusts acts as an instrument to pass on the assets to future generations.
A living trust is a trust established during a person’s lifetime in which a person’s assets and property are placed within the trust, usually for the purpose of estate planning. The trust then owns and manages the property held by the trust through a trustee for the benefit of named beneficiary, usually the creator of the trust (settlor). The settlor, trustee and beneficiary may all be the same person. In this way, a person may set up a trust with his or her own assets and maintain complete control and management of the assets by acting as his or her own trustee. Upon the death of the person who created the trust, the property of the trust does not go through probate proceedings, but rather passes according to provisions of the trust as set up by the creator of the trust.
A living will allows you to document your wishes concerning medical treatments at the end of life. Before your living will can guide medical decision-making two physicians must certify:
- You are unable to make medical decisions.
- You are in the medical condition specified in the state’s living will law (such as “terminal illness” or “permanent unconsciousness”).
A revocable trust is an agreement made by an individual during his or her lifetime, naming a trustee and beneficiary. Trust assets must be moved to the trust with a change in title of ownership. The trustor has flexibility, though, and can amend or terminate the agreement at any time. A revocable trust does not protect trust assets from the trustor’s creditors.
An irrevocable trust moves trust assets irrevocably into a trust, and the trustor cannot amend or terminate the agreement once made. Some irrevocable trusts are life insurance trusts and testamentary trusts. Irrevocable trust assets are protected from creditors in certain circumstances. Furthermore, a revocable trust can become an irrevocable trust when the trustor or joint trustor dies. At this point, the trust asset is protected from trustor creditors. Both revocable and irrevocable trusts have their uses, each depending on the goal you wish to achieve by establishing the trust.
Probate is required when someone passes away, and there is still property titled into the name of the deceased person. Essentially, when someone passes away, any property that is still titled in the deceased person’s name becomes “stuck” that way. Probate is the process of getting the property “unstuck” (i.e., out of that deceased person’s name) and delivering it to the rightful heirs or beneficiaries. If a decedent passes away without a will, Montana state law determines who will be the deceased person’s heirs. If the decedent did have a last will and testament, the will will determine who the deceased person’s beneficiaries are.
Our attorneys find that one of the single greatest factors that goes into someone’s experience dealing with a probate court is the expectations held at the beginning of the probate case. Some clients have totally unrealistic expectations, which is understandable, because they have never been through it before. Other clients may have no expectations whatsoever; they simply have questions about how probate courts work. Generally, the more realistic your expectations, the less frustrating the process will be.