Wills, Trusts and Estates

Attorney Lynn McKeever’s Preventive Practice approach to Wills, Trusts and Estates focuses on estates of less than $4,000,000.00. Plans anticipate the possible needs for management of assets during a client's old age, widowhood and immediately after death.

Enduring legal entities, such as LLCs, and cross-generational trusts, such as Revocable Living Trusts, serve as vehicles that hold title to assets and create a structure for rational decision-making.

Estate plans provide for management succession for family businesses, lifetime care for adult children with disabilities, post-mortem guidance for a literar or arts executor, and protection for special assets.

Where to Begin

It is a mistake to put off your first visit to the lawyer because you do not know for sure what you want to do. The purpose of a legal consultation is to discuss options and clear away conceptual misunderstandings. Once you understand the sequence of choices facing you, you will have the relationship with a lawyer who can implement your decisions.

Here is the list of choices you need to make. You do not have to do all the paperwork at once, and they are in order of first things first.

Choose a health care surrogate decision-maker. The Health Care Power of Attorney form is available on line from many sources. Under New Mexico law, the form does not have to be notarized, merely signed and dated. Include your birthdate so it can be kept by health care providers with your medical records.
Choose an agent to act under a Durable General Power of Attorney. This person will have access to your money, and the form has to be notarized. The agency relationship can be made to spring into existence when a doctor determines that you cannot make rational decisions.
Choose an executor. Often the same person you choose to be your agent under the Durable Power of Attorney would be willing to continue as a fiduciary after your death. An executor (also called a Personal Representative) is named in a formal Last Will and Testament that must be witnessed and usually is notarized.
Choose a trustee. If you want some or all of your estate to remain under administration for the benefit of someone you expect will need financial help and management, you will want to name a Trust for the Benefit of Another.

Remember that there is a large body of law out there. It is there to be a guide, and its wisdom is transmitted through the legal professional who has studied it -- your lawyer.

Lynn McKeever, JD

3636 Menaul Blvd. NE
Suite 101
Albuquerque NM 87110

(505) 991-1948

lynn@lynnmckeever.com

Most Credit Cards Accepted

We Represent Fiduciaries

An appointee who agrees to serve as executor, Personal Representative, trustee or agent under a Power of Attorney has a legal duty to act for the benefit of the beneficiaries according to law.

Merely being nominated to serve as a fiduciary does not require a person to accept the position or undertake the duty. But, once undertaken, the duty creates a standard of conduct that must be met.

The body of case law that governs the duties of fiduciaries has been growing for hundreds of years. Individuals are held to the same rules that have been set down for banks and trust companies.

So it is a good idea for every fiduciary to consult with counsel before taking any discretionary action. Attorney fees for legal advice are paid from the estate or trust.

If, however, a fiduciary is accused of breaching a duty, the defense attorney fees may have to be paid by the accused individual. So it is not wise to be frugal in seeking legal advice while the trust or estate is obligated to pay for it.

Some Typical Kinds of Trusts

Trusts may be created for several different kinds of applications. Here are some common trust arrangements:

Special Needs Trusts -- a trust arranged by a parent, grandparent, conservator, or court that provides for the special needs of a person on SSI and/or Medicaid and which reimburses Medicaid at the time of the death of the disabled person for benefits received. This trust is usually funded with money from a legal settlement.

Supplemental Needs Trust -- a gift trust, usually set up by a family member, for the benefit of a disabled person that works alongside the government benefits to which the beneficiary is entitled. This trust is funded with money passing by gift or inheritance and need not reimburse Medicaid.

Discretionary Benefit Trust -- a trust that gives the trustee the power to use assets for more than one beneficiary, for purposes described in the trust and at the trustee's discretion.

Irrevocable Trust -- a trust that permanently transfers ownership away from a taxpayer-owner, usually to avoid taxation.

Testamentary Trust -- a trust set up in a Last Will and Testament that reserves all or a part of the decedent's estate for on-going administration for the life of a beneficiary or a period of years after the death of the testator.

Charitable Trust -- a trust that grants a tax-deductible gift to a qualified charity while reserving an interest for the donor or the donor's family.