Lee Law Office

Most spouses create Estate Plans that are intertwined. The plans work well on numerous levels allowing the spouses to benefit the surviving spouse and then distributing their joint assets to their children upon the death of the survivor. Even in a second marriage situation, it’s possible for the first spouse to die to create a trust benefitting the surviving spouse for life, but then going to children from a prior relationship upon the surviving spouse’s death. What happens when two spouses die at the same time or so close in time that it’s impossible to determine who died first? Most documents contain what’s called a “simultaneous death” clause that indicates that one spouse will be deemed to have survived the other to address just that issue. Thankfully, even if the documents lack that provision, or contain conflicting provisions, nearly every state has enacted the Uniform Simultaneous Death Act which also addresses the issue.

When Estate Planning practitioners talk about the “Holy Grail” of Estate Planning, they generally mean the intentionally defective grantor trust which includes the assets contributed to it in the grantor’s income tax for income purposes but excludes such assets from the grantor’s estate for estate tax purposes. The 529 plan provides yet another example of the “Holy Grail” in Estate planning by allowing tax-free growth, control of the plan until the death of the grantor without estate tax inclusion, and protections in the event of bankruptcy, among other things.

Many Estate Planning attorneys have fielded a question regarding whether an Estate Plan was necessary, or whether a Will is necessary if the client has a Revocable Trust. Let’s settle the debate now. Even in an Estate Plan based upon a Revocable Trust, Wills play an important role. Everyone with an Estate Plan needs to have a Will because certain things can only be done with a Will.