Harper &
                        Lee Law Firm, P.C. Billings Attorneys
                        Bruce Harper Attorney at LawMichelle Lee Attorney at Law
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Estate Planning, Wills, Trust and Probate

What is Estate Planning?

Estate planning is the process of preparing your affairs so that your needs and wants are met when final distribution of your property becomes necessary.

Upon your death, someone is going to receive your property through either inheritance, through your designed plan or pursuant to operation of Montana intestate law.  We are very skilled in reviewing your assets, conserving as much of your estate as possible from estate taxes and other costs and proposing a plan that will ensure that your final wishes are carried out as you wish them to be.
What a Will does for you and your family

What a will does for you and your family.

Every state has laws that control the distribution of a person’s estate property in the event he or she dies without a Will, or other written testamentary plan.  Under Montana law, if an unmarried person dies leaving no descendants and no writing expressing his or her intention, estate assets will pass to the deceased’s surviving parents, in equal shares.  If no parents survive the deceased individual, Montana law directs that all such property be divided evenly between or among siblings.  If non-estate assets such as life insurance, IRAs and retirement plans have no designated beneficiary, these assets will also pass in the same manner.  Many people provide for such proceeds to be paid to their estate, but then fail to prepare a Will identifying their successors.  A simple Will expressing a thoughtfully considered gifting plan is usually preferable to Montana’s legislative mandate.

As for married persons with no substantial assets, no health concerns and no minor children, the need to prepare a Will may be less compelling.  Most married couples own and hold their assets in joint tenancy with right of survivorship.  Therefore, in the event of the death of one married person, all assets in joint tenancy will pass to the survivor without the need of probate or other complicated process.  Even the title to the family residence is easily transferred to the surviving spouse upon the simple filing of an appropriate affidavit reciting the pertinent information. Inheritance tax is no longer imposed by the State of Montana and thus is no longer an issue.

Matters become complicated once children enter the picture.  Now the Will becomes a very important consideration.  Every family with minor children needs the protection, guidance and direction that a Will provides.  Parents need to discuss and decide who will be designated to act as Guardian of any minor children in the event of the death of both parents.  In the absence of a Will providing such guidance, grandparents may compete for the right to raise the orphaned children.  With the prevalence of second marriages, it is conceivable that four grandparent couples could seek to exercise control over the minor children.  State agencies would likely be involved.  In the absence of an expressed appointment by the parents of the children set forth in a Will, a custody battle could be the undesirable result.  As a general rule, a Montana Court will confirm the appointment of the Guardian contained in the Will executed by the parent, or parents, thus precluding such custodial disagreement.

Just as significant for the protection of the minor children, and the peace of mind of the parents, is to have a Will that provides for the creation of a Testamentary Trust and the nomination of a Trustee to preserve, invest and ultimately distribute the family property upon the death of the parents.  In most circumstances, family assets with any monetary value, including the family home, will be liquidated.  For young families, the most valuable asset is likely to be a life insurance policy or policies on the deceased parent’s or parents’ lives.  An attorney experienced in the field of estate planning will not fail to suggest and ensure that new beneficiary designations are prepared and delivered to the family’s insurance agents which will provide for payment of the insurance proceeds to the Trustee designated in the Will.  The same thoughtful planning also applies for the IRAs and retirement plans.  With proper advance preparation, the proceeds of all family assets will, after liquidation, be gathered under the protection of the Trust.

Why Would I need to start estate planning now?

Some Common Goals Of Estate Planning May Be...

$     Retire at a specific age.
$     Provide security for both spouses after retirement.
$     Provide security for an incapacitated family member.
$     Provide security for surviving spouse.
$     Relieve surviving spouse of estate management responsibilities.
$     Avoid probate and minimize estate settlement costs.
$     Name guardians, conservators or trustees of minor children.
$     Minimize Federal estate and Montana estate taxes.
$     Assure continuity of farm, ranch or other business ownership.
$     Assist beneficiaries to get started in business.
$     Provide educational opportunities for beneficiaries.
$     Designate a successor Trustee for the Trust.
$     Nominate a Personal Representative for the Estate.
$     Provide means for paying expenses of estate settlement, taxes and other debts.
$     Provide equitable (not necessarily equal) treatment of family members.
$     Transfer specific property to specific people.
$     Make gifts to family members and others during lifetime.
$     Provide for charitable bequests to favorite charities or organizations.
$     Review and plan for successor operation and ownership of farm, ranch and business properties.

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What a Trust does for you and your family.

A Trust is a document that allows you, as the Testator, to direct exactly what you want someone, the Trustee, to do with your assets.  The most popular benefit of having a Trust is that your heirs are able to avoid probate upon your death.  Probate can be a costly and complicated process, and many families choose to create a Trust in order to avoid it.

There are many different Trusts that can be created to meet your every need.  A self-created Trust under which you act as your own Trustee is known as a Grantor Trust.  Grantor Trusts utilize one's own Social Security Number so long as you continue to act as your own Trustee.

After the creation of the Trust, you will fund the Trust with the assets that you wish.  This can include transferring title of your home to your Trust, designating the Trust as the beneficiary of your retirement account and life insurance policies and any other asset that you desire.  Our estate planning attorneys will discuss how a Trust would be beneficial to you in fulfilling your final wishes.

Powers of Attorney

It is recommended that a person prepare Powers of Attorney at the time of execution of their dispositive Estate planning documents, i.e., a Trust and/or Will.  A Power of Attorney can be used to appoint another person or entity to act on the person's behalf who becomes unable to act for him or her self.  Such document may be used to assist in asset management situations or in situations providing for personal care or health care matters.

Living Wills

Montana, and other states in this country, allow an individual to give direction to withhold life sustaining treatment when medical opinion concludes that an incurable or irreversible condition exists with regard to a person's health.  The execution of a written declaration so providing should be addressed during an estate planning session with your attorney.

Guardianship and Conservatorship

Sometimes it is necessary to protect someone’s personal and financial interests by creating a Guardianship and/or Conservatorship.

A Guardianship is a legal proceeding in which the Court appoints someone to protect the person physically, including providing food, clothing and shelter, when the person is unable to provide it for themselves due to varying factors, which may include dementia or mental illness.

A Conservatorship is a legal proceeding in which the Court appoints someone to protect the person financially, which generally includes protecting assets, paying bills and applying for benefits for the person.

Our attorneys are skilled in seeking the Court appointment of Guardians and Conservators for minors, incapacitated adults and the aging population.

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Estate Planning Index

Phone: 406.255.7474 - Fax: 406.248.1160 - 2625 St. Johns Avenue - P.O. Box 80370 - Billings, Montana 59108