The term advancements refer to a type of irrevocable transfer, generally from a parent to their child. In regards to trusts and wills, advancements involve transferring some or all of the parent’s estate which the child would have collected upon the death of their parent(s). In short, an advancement is simply a transfer of the parent’s assets that occurs during their lifetime, i.e. in advance, rather than at the time of their death.
Advancements are not considered to be loans or debts, due to the fact that the transfer is made without the recipient being asked for any compensation in return. However, advancements are different from gifts in that the recipient may be required to account for the advancement before they are able to claim the remainder of the decedent’s estate.
A will is a legal document that provides directions regarding how a person’s estate is to be distributed when they die. It will detail what the estate consists of and who specifically is to receive what; an example of this would be specifying which child is to receive what amount of money. A trust allows one person, or the trustee, to hold property for the benefit of another person, or the beneficiary.
Unlike wills, trusts may be transferred before the death of the testator. An advancement differs from wills and trusts because the transaction takes place between the estate owner (or testator) and the recipient while the estate owner is still alive. There has not yet been a death, and no third party is involved.
What Are Some Legal Effects of Advancements?
In an advancement scenario, the transfer is coming out of the testator’s estate. As such, it reduces the amount that the beneficiary may claim later on. An example of this would be if a testator transferred $20,000 to one of their multiple children. If the transfer is considered to be an advancement, that child would have that $20,000 deducted from their share of the estate when it is distributed at the testator’s death.
The other children would not have anything deducted from their share at time of distribution. However, if the transfer is not considered to be an advancement, it is unlikely that there will be any deductions at the time of distribution.
Depending on the jurisdiction, the testator may need to state whether a transfer is actually an advancement. In most cases, the testator must indicate whether the transfer is to be classified as an advancement so it may later be deducted from their estate. Other jurisdictions dictate that any transfers prior to death are to be considered an advancement. Additionally, some states include transactions from a person other than a parent or child in their definition of an advancement.
Some jurisdictions automatically presume that a transfer that occurs just prior to death is considered to be an advancement, whereas a transfer that is made earlier in the testator’s life would not be considered an advancement. To avoid any confusion, it is always best for the testator to clearly indicate whether or not they intend for a specific transfer to be treated as an advancement. This can be accomplished through effective estate planning well before the testator’s death is anticipated, and by putting a statement in writing that records the transaction.
What Is a Will Contest?
It is important to discuss contesting a will, because unclear instructions for transfers could result in a will contest or other related legal problems. Will contests typically involve the beneficiaries disputing various terms of the will, and challenges the validity or authority of the will and its provisions. A no contest or anti contest clause may be inserted into the will, in order to prevent beneficiaries from contesting the will by stating that they will forfeit any inheritance they have.
Contesting a will generally begins by filing a lawsuit with the appropriate probate court. This might involve submitting various documents that highlight the reasons for contesting the will. Additionally, there may be filing deadlines associated with contesting a will. Wills are most commonly contested when a will has been poorly written, such as containing unclear or vague language.
As previously mentioned, documents that record transfers as either gifts or advancements, as well as effectively written wills, are the best way to avoid future legal disputes such as will contests.
Do I Need an Attorney for Assistance with Advancements and Will Documents?
A skilled and knowledgeable estate attorney can be a valuable asset when estate planning and writing your will. The attorney can ensure your needs are met, while also ensuring that the language used in the will is clear and could avoid future legal disputes.
Advancements can be a complicated sub-area of several different types of laws, including trusts, wills, and estate law. Additionally, advancement designations vary by state. An experienced estate attorney can help you understand your state’s laws regarding the matter, as well as represent you in court as needed.