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Review your Estate Plan

If You Haven’t Been Regularly Reviewing Your Estate Plan, Start When You Hit 60

If You Haven’t Been Regularly Reviewing Your Estate Plan, Start When You Hit 60

 March 19th, 2019

How frequently you should review your estate plan depends on how old you are and whether there has been a significant change in your circumstances. If you are over age 60 and you haven’t updated your estate plan in many decades, it’s almost certain that you need to update your documents. After that, you should review your plan every five years or so. But if you’re younger, you don’t need to do so nearly as often.

Age

Here are a few age ranges and what they mean in terms of estate planning:

18-30   Everyone needs a durable power of attorney, health care proxy and HIPAA release so that they have people they choose to step in and make decisions for them in the event of incapacity.

30-40   Once you begin accumulating assets, get married, and have children, it’s important to create an estate plan to care for your loved ones in the event of your death. It also can’t hurt to update your durable power of attorney, health care proxy and HIPAA release, since the people you may have appointed at 18 (your parents?) may not be the people you want in these roles at 35.

40-60   Unless there’s been a change in your circumstances, and assuming you’ve set a good plan in place during your 30s, you probably don’t need to review your estate plan during your 40s and 50s.

60-70   Once you’ve hit your 60s, it’s time to take a look. Your children are probably grown. You may have grandchildren. And, hopefully, you’ve accumulated some wealth. The people you appointed to step in in the event of incapacity when you were 35 may not be in a position to assist when you’re 65. You may have retired or are contemplating doing so. And, unfortunately, the chances of disability or death increase with every year.

70+   Now it’s time to review your plan every five years or so. Changes happen — to your health and that of your loved ones, to the tax laws, to the programs supporting long-term care or disability care. It’s important to have a plan in place and to adjust it as circumstances change.

Change in Circumstances

While the timeline above outlines when you should review and perhaps update your estate plan, it needs to be supplemented by the following potential changes in circumstances that would warrant a review of your plan to see if it still meets your goals and needs:

  • Marriage. You’re likely to want your assets to go to your spouse and to name him or her to be your agent in the event of incapacity.
  • Divorce. Likewise, if you get divorced, you probably won’t want your assets to go to your ex-spouse or to rely upon him or her to step in if you were to become incapacitated.
  • Children. Once you have children, you’ll want to provide for them and to name someone to step in as guardian in the event of your death or incapacity and that of their other parent, if any. Generally, once you have a plan in place you do not have to update it if you have more children.
  • Disability. If you or someone who would inherit from you becomes disabled, you will need to plan to protect and manage your assets, whether for yourself or for your beneficiaries.
  • Wealth. If you accumulate sufficient assets to exceed the thresholds for state and federal estate taxes — $11.4 million federally — you may want to plan to reduce or eliminate such taxes.
  • Moving. If you move to a new state or country, it will be important to have your estate plan reviewed to make sure it works in the new jurisdiction.

In short, until you reach age 60 or 70, reviewing your estate plan every five years probably is overkill. But do so whenever you have a change in circumstances such as those listed above. If you’re over 60 and haven’t updated your estate plan in many years, now’s the time. Then, having a review every five years is definitely a good rule of thumb. This is why If You Haven’t Been Regularly Reviewing Your Estate Plan, Start When You Hit 60

Read more related articles at:

4 Reasons to Review Your Will

7 Reasons It’s Time To Update Your Estate Plan

Also, read one of our previous blogs at:

Do You Think Everything Is All Set with Your Estate Plan?

Avoiding Probate in Florida

Avoiding Probate in Florida

Avoiding Probate in Florida

How to save your family time, money, and hassle

Need Professional Help? Talk to a Probate Attorney.

Living Trusts

In Florida, you can make a living trust to avoid probate for virtually any asset you own—real estate, bank accounts, vehicles, and so on. You need to create a trust document (it’s similar to a will), naming someone to take over as trustee after your death (called a successor trustee). Then—and this is crucial—you must transfer ownership of your property to yourself as the trustee of the trust. Once all that’s done, the property will be controlled by the terms of the trust. At your death, your successor trustee will be able to transfer it to the trust beneficiaries without probate court proceedings.

Joint Ownership

If you own property jointly with someone else, and this ownership includes the “right of survivorship,” then the surviving owner automatically owns the property when the other owner dies. No probate will be necessary to transfer the property, although of course it will take some paperwork to show that title to the property is held solely by the surviving owner.

In Florida, two forms of joint ownership are available:

  • Joint tenancy. Property owned in joint tenancy automatically passes to the surviving owners when one owner dies. No probate is necessary. Joint tenancy often works well when couples (married or not) acquire real estate, vehicles, bank accounts or other valuable property together. In Florida, each owner, called a joint tenant, must own an equal share.
  • Tenancy by entirety. This form of joint ownership is like joint tenancy but is allowed only for married couples in Florida.

Payable-on-Death Designations for Bank Accounts

Transfer-on-Death Registration for Securities

Florida lets you register stocks and bonds in transfer-on-death (TOD) form. People commonly hold brokerage accounts this way. If you register an account in TOD (also called beneficiary) form, the beneficiary you name will inherit the account automatically at your death. No probate court proceedings will be necessary; the beneficiary will deal directly with the brokerage company to transfer the account.

Transfer-on-Death Deeds for Real Estate

Florida does not allow real estate to be transferred with transfer-on-death deeds. There is a type of deed available in Florida known as an enhanced life estate deed, or “Lady Bird” deed, that functions like a transfer-on-death deed. This type of deed is not common. For more information, read one of our Blogs at: What is a Lady Bird Deed?

Transfer-on-Death Registration for Vehicles

Florida does not allow transfer-on- death registration of vehicles.

Simplified Probate Procedures

Even if you don’t do any planning to avoid probate, your estate may qualify for Florida’s simplified “small estate” probate procedures. Contacting a Probate Attorney is your best course of action to point you in the right direction for a solution that best fits your personalized needs.

Read more related articles at:

How to Avoid Probate in Florida

Florida Courts Probate

Also, read one of our previous Blogs at:

Why You Might Want to Avoid Probate and How to Do It

Click here to check out our On Demand Video about Estate Planning.

 

 

 

privacy estate planning

How to Keep Your Estate Plans Private.

How to Keep Your Estate Plans Private.

Did you know that having a Will does not mean that it will not become public record? In fact, in the state of Florida, Wills are still subject to probate and all of the contents of your Will become public record, available for anyone to see. Many families are hesitant to discuss financial affairs together.  Parents do not necessarily want their children to know how much or exactly what they have.  Some do not want their loved ones to know exactly how they plan to dispose of their assets when they die. However, someone needs to know where the estate planning documents are located and/or how to access those documents when they are needed. All too often it is the lack of information and knowledge not disclosed by the decedent that leaves a very trying and difficult estate planning process for their surviving loved ones.

You might want to consider that the people who are named to various roles in your planning know that they have been named.  For instance, if Child A knows that you would like him to serve as your Executor but after learning what the job entails, he/she decides they do not want the job, it is far better to learn that while you are alive and well so that now you can make alternative plans.

While someone is alive, there is little to be gained from sharing the contents of a Will with other family members.  There can easily be resentment caused by plans to give certain items of personal property to specific individuals or to bequeath different portions of one’s estate to different children or other relatives.  Also, once family members know how someone plans to dispose of their assets, there can be additional resentment caused if those plans are changed later.

But sooner or later a Will can no longer be kept private.  That is because eventually a testator dies, and their estate must be formally settled.  In order for the Executor named in the Will to become the Executor, the Will must be filed with the probate court.  Once that Will is filed with the probate court, it is part of the public record.  In many states, including Florida, even if a decedent leaves no assets that need to be formally probated, by statute the Will still needs to be submitted to the Probate Court. 

For those who value privacy and wish to keep their estate planning a family affair, other estate planning can ensure that the Will is only a small part of the overall picture of one’s estate planning.  A pour-over Will provides that any assets in an individual’s name when they die should be distributed to a trust at the conclusion of the probate process.  If most of the decedent’s assets were already funded into a trust before they died, then there may be very little, or nothing left in the probate estate.

For the most part, trust planning can be kept private.  Unlike a Will where the document becomes part of the public record and must be furnished to interested parties, a trust agreement with some exceptions need not be filed with the probate court.  That is one of the many advantages to using trusts in your planning.  A Trustee of course must administer the trust for the benefit of the beneficiaries in adherence to all of the instructions and requirements in the trust, so the Trustee is privy to what is in your Trust. 

Read more related articles at:

How to Keep Your Estate Plan Private

ESTATE PLANNING

Also, read one of our previous Blogs at:

How Do You Stop Family Fights Over an Inheritance?

Click here to check out our On Demand Video about Estate Planning.

executor of estate

Things to Know About Being an Executor.

Things to Know About Being an Executor of an Estate

Closing out the estate of a relative or friend who has died is an important, and time-consuming, responsibility

MILLER MOBLEY/REDUX

Things to Know About Being an Executor. Life is complicated, but it turns out death is complicated, too. Winding up the lifelong financial affairs of a deceased loved one often requires generous amounts of patience, free time and organizational smarts. The skills of a sleuth may be needed to uncover assets tucked away or forgotten. And even then, things are sometimes missed. It’s natural to feel honored if a friend or relative asks you to serve as executor, or personal representative, as the position is also called. If the person is near death, the urge to say yes is all the more pressing. But given the complexities of the role, it’s crucial that you take it on only if you feel fully capable. Here are a few questions to ask yourself before you do.

 

1. Do you have the time?

When her mother died in 2011, Susan Crim had no idea that it would take nearly two years, as executor, to close out the estate. Wrestling with paperwork, faxing documents and traveling from Virginia to consult with legal and financial experts became a way of life as she grappled with a confusing bureaucracy. “I was grieving,” says Crim, 59. “It was challenging.” Then last February, just two months after she settled her mother’s affairs, her father died. And her duties as an executor began all over again.

Phone calls, trips to the county courthouse to record financial information standing in line at the post office to mail registered letters — these and countless other tedious duties may await you. You’ll need to have information from banks, mortgage servicers, investment firms, life insurance companies and all other firms that had a role in the deceased person’s holdings. Among the more grueling tasks, you may be called on to sort and value the contents of the person’s home.

“Often, it’s 50 years of accumulation,” says Harry Margolis, an elder law attorney in Boston. “Trying to figure out which family members want which items — how do you choose among them? How do you take care of their interests and make sure they’re treated fairly?”

2. Do you have the skills?

Being an executor requires a high degree of organization. One executor recalls keeping a notebook and recording every single communication with lawyers, bankers and other contacts.

“People who can’t balance their own checkbook, who have financial difficulties of their own, who have no idea how to organize financial information, people who don’t like detail — those are not good candidates,” says Sally Hurme, a lawyer at AARP and author of the American Bar Association’s The ABA Checklist for Family Heirs. Like a private eye, you may have to know how to dig for assets. Finding dusty stock or bond certificates in a drawer, rather than at a brokerage firm, may be a clue there are more awaiting discovery.

3. Do you have the temperament?

As you sort through legal and financial matters, you’ll confront a range of personalities, so it helps to be calm. Min Zwang, 84, initially appointed all four of her children as executors when she created her estate plan. But she began to question that decision and recently changed her will. She named one daughter as the sole executor to help the process go more smoothly.

The daughter is easygoing, Zwang says, and she’s married to an accountant, whose skills would be helpful. “It’s a tremendous burden I’m putting on her, and I realize that,” says Zwang, who lives in Toms River, N.J. “I tried to make it as easy as possible by dividing everything equally. I don’t want there to be any disharmony.”

Some lawyers say it’s best to appoint one executor, as Zwang did. But Anthony Enea, chair of the elder law section of the New York State Bar Association, advocates choosing at least two children. “It creates a system of checks and balances,” he says. “If you pick one child, it gives that person a lot of power and discretion. But it depends on the family dynamics. There’s no set formula.”

To keep peace and create trust, it’s important that the executor settle the affairs openly, says elder law attorney Margolis. “What you’re doing, how much money is there, what’s happening in the process — the more transparent you are, the more [the other siblings] will relax.”

4. Do you know the rules?

Each state has specific laws on executors’ responsibilities, along with timetables for them to perform their duties. Paying the funeral expenses, publishing death notifications and filing estate tax returns are a few examples of what might be required. Your state may have an online law library that details the rules and requirements. The American Bar Association website also offers guidance about settling an estate — search online for “ABA guidelines for individual executors and trustees.”

Many executors find certain tasks so daunting that they consult lawyers for help. Others hire lawyers to manage the entire process, which is of course much more expensive. Either way, you need to follow the law strictly — you are personally liable for the proper administration of the estate. If you misrepresent the value of any assets, you could be held accountable by the IRS or by the beneficiaries. If you’re found to have shortchanged the heirs, you could be required to reimburse them out of your own pocket or pay fines.

5. Can you afford to be an executor?

If you live in another state, will you need to travel to the person’s hometown, and if so, how often? Will the estate cover travel expenses?

Crim made repeated trips from her home in Alexandria, Va., to her late parents’ place in Saline, Mich., to deal with paperwork and other tasks. “I fax things all over the country, but I do sometimes have to sign papers and fill out forms with lawyers and financial professionals in Michigan,” she says. The estate will pay for those travel costs. It would be an expensive proposition otherwise, Crim says.

What about the value of your time? Will you be expected to do this work for free? In most states, executors are entitled to take a percentage of the estate’s value, even if a fee wasn’t specified in a will. But with those legal guidelines, it’s still common for executor fees to become a source of conflict with heirs. Some family members may view the money as their own or be unaware of the time you’ve invested.

Elizabeth Haase, a Washington, D.C., psychologist, says administering a friend’s estate was like a second job. Yet at least one extended relative balked at her taking the fee specified in the will — 2 percent of the estate’s value. She wanted to honor her friend’s dying wishes by being executor but felt guilty about accepting payment. In the end, it was so much work that she took the fee. It hardly seemed like a windfall. “Nobody does it for the money,” Haase says.

The Estate-Planning Checklist

Who hasn’t heard tales of relatives fighting over bank accounts, siblings no longer speaking to one another, or loving relationships severed for good as estates are settled and assets distributed? You can help head off those dramas in your own family by putting your financial affairs in order now.

1. Make a list: Write down all the numbers for your credit cards, bank accounts, passwords, retirement and investment accounts, life insurance policies, tax records, safe-deposit boxes and real estate. Include the names and contacts of any lawyers and financial experts you’ve used. Keep the list updated and tell your executor where it’s located.

2. Be specific. Create a will or trust that clearly specifies your wishes. Do you want your granddaughter to inherit your diamond wedding ring and your grandson to have your car? Put that on a separate list and attach it to your will.

3. Talk openly. If you appoint one sibling as executor, tell the others why you made that decision. Perhaps it’s because the designated child is the eldest, or lives close by, which will make the process easier.

4. Be clear on fees. Realize that asking someone to be an executor is more than a favor. It’s a very demanding job. Consider specifying that a fee will be paid, and how much. Explain to everyone else why.

Carole Fleck is a writer and editor for AARP Media.

Read more related articles at:

Executor of a Will Checklist: Your Step-by-Step Guide

What is an executor? Things you need to know

Also, read one of our previous Blogs here:

Do You Know Your Job as Executor, Agent or Trustee?

Click here to check out our On Demand Video about Estate Planning.

Estate Planning

Estate Planning Meets Tax Planning

Estate Planning Meets Tax Planning

 

Estate Planning Meets Tax Planning.  Not keeping a close eye on tax implications, often costs families tens of thousands of dollars or more, according to a recent article from Forbes, “Who Gets What—A Guide To Tax-Savvy Charitable Bequests.” The smartest solution for donations or inheritances is to consider your wishes, then use a laser-focus on the tax implications to each future recipient.

After the SECURE Act destroyed the stretch IRA strategy, heirs now have to pay income taxes on the IRA they receive within ten years of your passing. An inherited Roth IRA has an advantage in that it can continue to grow for ten more years after your death, and then be withdrawn tax free. After-tax dollars and life insurance proceeds are generally not subject to income taxes. However, all of these different inheritances will have tax consequences for your beneficiary.

What if your beneficiary is a tax-exempt charity?

Charities recognized by the IRS as being tax exempt don’t care what form your donation takes. They don’t have to pay taxes on any donations. Bequests of traditional IRAs, Roth IRAs, after-tax dollars, or life insurance are all equally welcome.

However, your heirs will face different tax implications, depending upon the type of assets they receive.

Let’s say you want to leave $100,000 to charity after you and your spouse die. You both have traditional IRAs and some after-tax dollars. For this example, let’s say your child is in the 24% tax bracket. Most estate plans instruct charitable bequests be made from after-tax funds, which are usually in the will or given through a revocable trust. Remember, your will cannot control the disposition of the IRAs or retirement plans, unless it is the designated beneficiary.

By naming a charity as a beneficiary in a will or trust, the money will be after-tax. The charity gets $100,000.

If you leave $100,000 to the charity through a traditional IRA and/or your retirement plan beneficiary designation, the charity still gets $100,000.

If your heirs received that amount, they’d have to pay taxes on it—in this example, $24,000. If they live in a state that taxes inherited IRAs or if they are in a higher tax bracket, their share of the $100,000 is even less. However, you have options.

Here’s one way to accomplish this. Let’s say you leave $100,000 to charity through your IRA beneficiary designations and $100,000 to your heirs through a will or revocable trust. The charity receives $100,000 and pays no tax. Your heirs also receive $100,000 and pay no federal tax.

A simple switch of who gets what saves your heirs $24,000 in taxes. That’s a welcome savings for your heirs, while the charity receives the same amount you wanted.

When considering who gets what in your estate plan, consider how the bequests are being given and what the tax implications will be. Talk with your estate planning attorney about structuring your estate plan with an eye to tax planning.

Reference: Forbes (Jan. 26, 2021) “Who Gets What—A Guide To Tax-Savvy Charitable Bequests”

Read more related articles at:

5 Estate Planning Tips to Keep Your Money in the Family

Estate Planning Strategies to Reduce Estate Taxes

Also, Read one of our previous Blogs at:

Big News for Trust Taxation

Click here to check out our On Demand Video about Estate Planning.

helping

What Can You Do to Help Support the Seniors You Love Right Now?

What Can You Do to Help Support the Seniors You Love Right Now?

From Focus on the Family.com

Assisting Aging Loved Ones With Estate Planning

What Can You Do to Help Support the Seniors You Love Right Now? Do you have any advice for me as I attempt to help my elderly mother protect her financial assets and make sure her wishes will be carried out after her death? Wills, trusts, partnerships, probate, power of attorney — I know next to nothing about them. How should we plan her estate?

In response to the growing aging population in the U.S., a new, specialized area of law has emerged over the past several years – elder law. Elder-law lawyers are a relatively new specialty of attorneys who concentrate on handling the often complicated legal affairs of seniors. The National Academy of Elder Law Attorneys (NAELA) maintains a website that includes a series of “Law and Aging” brochures addressing various elder law topics. An elder-law attorney can help you clarify the pros and cons of obtaining a power of attorney, a trust, a conservatorship, a guardianship, Medicare benefits and Medicaid benefits and a number of other legal documents designed to preserve and protect your mother’s assets. You need to be aware of both your rights and obligations as you enter into any of these binding agreements. Here’s a list of the ten most common arrangements:

Will

Every person should have a will. This is a legal document that describes how the person wants her property distributed after her death. A will can contain the name of an executor or personal representative who will take responsibility to see that it is carried out. Unless a will has been drawn up, the state will decide how to divide the person’s possessions and property according to its own guidelines.

Trust

A trust is a document that gives a person the right to manage another person’s money and property. It’s an agreement between your mother (the settlor or trustor) and the individual she appoints (the trustee) to carry out her wishes. Unlike a durable power of attorney, the trust is a long and detailed document that outlines specifically how money and property should be handled. In addition, the trust often remains in effect after the person dies. It can be either revocable or irrevocable, and there are several different kinds of trusts, depending on how your loved one wants to arrange the protection and disbursement of her inheritance.

Letter of instruction

This is a document prepared by your mother and her lawyer. It should contain the names of the individuals to be notified upon her death, funeral arrangements, directions for disposal of personal property, numbers of bank accounts, information on insurance policies, anatomical-gift information, etc. This is not a legal document; it’s just a listing of personal requests to be followed along with the will.

Family limited partnership

This estate-planning tool allows seniors who own their own businesses to reduce the value of the business for tax purposes and to adjust the cash flow received by children who are “limited partners” in the business. It’s a way for a businessperson to protect his or her business and provide for surviving relatives.

Joint tenancy

Husbands and wives quite often have joint ownership of their money, property and other possessions. One form of common ownership is called “joint tenancy with a right of survivorship.” This means that if one spouse dies, the other automatically inherits everything. Other joint-tenancy agreements add an adult child to the agreement. Joint tenancy can help a loved one avoid probate, but it has its drawbacks and it’s certainly no substitute for a will. A lawyer can advise you on the pros and cons of joint tenancy.

Probate

This is the process by which legal title to property is transferred from the deceased’s estate to her beneficiaries. If the person dies with a will (“testate”), the probate court determines if the will is valid, orders that creditors be paid, and makes sure the will distribution instructions are followed properly. If a person does not have a will (“intestate”), the probate court appoints a person to process all claims against the estate. A will can be contested during probate for a variety of reasons.

Power of attorney

Your mother can give someone power of attorney over her affairs. You can have either general or special power of attorney. General power of attorney grants you power to take care of any financial transactions, and sometimes includes the power to make health care decisions as well. A special power of attorney authorizes you to do a limited number of actions for your grandmother. A power of attorney is usually granted only for a specific period of time. A Durable power of attorney, which does not terminate if the person granting it becomes mentally incompetent, involves the creation of a document (with the help of a lawyer) to give a trusted friend or relative the power to make either financial or medical decisions on your mother’s behalf when necessary.

Conservatorship

If your mother becomes legally incapacitated, you can go to a probate court and ask that you be appointed a conservator over her property. Note that this can be done against your mom’s wishes and may cause friction between siblings. So use extreme caution before adopting this plan, and be sure to communicate clearly with other members of the family.

Guardianship

If the court determines that your mother is incapacitated and unable to make her own decisions because of physical or mental disability, you can be named her guardian. She becomes your “ward,” and you have authority to manage her money or property.

Representative payee

If your mother has a disability and is unable to manage a pension or public-benefit income, you may want to consider becoming a representative payee. Social Security, Veterans Affairs, and other public agencies can appoint you to disburse the funds. You should contact each specific agency for an application form.

For more information, you may wish to take a look at the website of the National Association of Area Agencies on Aging. If you could use further information and guidance, please don’t hesitate to give our Gift and Estate Planning staff a call. They would be happy to listen to your concerns and assist you with some practical suggestions. You can contact them Monday through Friday between 8:00 a.m. and 5:00 p.m. Mountain time at (800) 782-8227.

Read more related articles at:
Avoiding Probate

Avoiding Unnecessary Probate Costs

Avoiding Unnecessary Probate Costs

BARCLAY PALMER

Each year, millions of dollars are spent on soaring attorney and court fees associated with probate proceedings upon the death of a loved one. Avoiding probate in estate planning allows the decedent’s property to be distributed to the designated person at a designated time without substantial costs.

  • Avoiding probate can help allow the distribution of the estate with fewer costs.
  • The probate process involves proving the last will.
  • Transferring property to a trust is one way to avoid probate.

 

Background on the Probate Process

Probate is the process of proving the will is, in fact, the last will, and there are no challenges to it and of adjudicating any claims against the estate under court supervision. Probate usually occurs in the appropriate court in the state and county where the deceased permanently resided at the time of his or her death. If there is no valid will (called intestacy), the title to the property will pass under state intestacy laws to “heirs at law,” normally giving one half to the surviving spouse and dividing the remainder equally among the children. With or without a will, the property must go through the probate proceedings. Even if a person dies with a will, a court generally must allow others the opportunity to contest the will. Creditors are allowed to step forward; the validity of the will can be scrutinized, and the deceased’s mental capacity at the time the will was drafted can be questioned. These proceedings take time and money, and your heirs are the ones who will have to pay. Since probate proceedings can take up to a year or two, the assets are typically “frozen” until the courts decide on the distribution of the property. Probate can easily cost from 3% to 7% or more of the total estate value.

 

Simplifying or Avoiding Probate Altogether

Even though probate takes place regardless of whether you made a will you can look to other tools that help your inheritors. Transfer Property to a Trust.  Revocable living trusts or inter-vivos trust were invented to help people bypass the probate process. Unlike the property listed in your will, the property in a trust is not probated, so it passes directly to your inheritors. You simply create a trust document and then transfer the property title to the trust. Many people name themselves as the trustee  to keep total control of the trust property. A trust also allows you to name alternate beneficiaries; it does not require a waiting period after death and is much harder to attack in court.

Set up Payable-on-Death Registrations

Also known as transfer-on-death accounts, these allow you to name one or more beneficiaries of the account to avoid the probate process. It’s simple to create and usually free, and the beneficiary can easily claim the money after the owner dies. The ability to name a beneficiary, however, is a feature that you must add to the account, but most banks, savings and loans, credit unions, and brokerage firms allow you to do so. It requires some extra paperwork and time, so you’ll need to be persistent and ask your institution for the required forms.

Make Tax-Free Gifts

Making gifts helps you avoid probate for a very simple reason: you no longer own the property when you die. For tax years 2020 and 2021, you can give your heirs up to $15,000 per person each year without a gift tax penalty. Giving before you die helps lower your probate costs because, typically, the higher the monetary value of assets going through probate, the higher the probate costs.

Revisit the Beneficiary Designations on Your Stuff

Dust off that old life insurance policy and make sure your beneficiaries are up to date. Too many times, individuals forget to change their beneficiary after their second marriage, and then the ex-spouse gets everything. Call your custodians and update the beneficiaries on your IRAs, 401(k), life insurance policies, annuity contracts, and other retirement accounts. These types of accounts pass at your death by contractual beneficiary designation, meaning whoever you name in your will is irrelevant to these accounts; beneficiary designation will take precedence in court. Avoid naming your estate as the beneficiary, which will cause your property to go through probate.

Use Joint Ownership

Joint tenancy with right of survivorship, tenancy by the entirety, and community property with right of survivorship are the types of joint ownership that allow your property to bypass the probate process. If you hold your stocks, vehicles, home, and bank accounts in joint ownership, the title of the property automatically passes to the joint survivor upon your death. Remember, once you title your property jointly, you’ll be giving up half ownership in the property.

 

The Bottom Line

Although we’ve demonstrated some weaknesses of having a will as your sole estate planning tool, don’t think that you no longer need one. The guidelines above point out great tools to build a more effective plan. However, you’ll want to draft a will to cover property acquired shortly before you die or anything that might have been overlooked. A good estate plan should distribute a decedent’s property when and to whomever the person desired, and with a minimum amount of income, estate, and inheritance taxes, as well as attorney and court fees. Avoiding probate is an important part of achieving these goals.

Read more related articles at:

Consumer Pamphlet: Probate in Florida

How Much Does Probate Cost?

Also, read one of our previous Blogs at:

How Do You Handle Probate?

Click here to check out our On Demand Video about Estate Planning.

Estate Planning

Trusts, Wills, and Estate Planning: Facts You Should Know

Trusts, Wills, and Estate Planning: Facts You Should Know

Estate planning conjures images of conniving lawyers and bankers discussing million-dollar trusts for many people, and considering which conditions to place on a bequest to a ne’er-do-well relative. But that’s not usually the case. Even people of modest means can spare their loved ones serious headaches by creating an estate plan and will to dictate what happens to their property at the time of their deaths.

Your “estate” is everything you own—all your property and property rights, even assets with loans against them. They don’t die when you do. They have to move into the ownership of a living beneficiary, because a decedent can’t own property. How your property is managed and distributed after your death depends on whether you die “testate” with a valid will, or “intestate” without a will.

The Statistics on Who Has a Will

The number of people who have wills has been steadily declining in the millennium, according to a 2020 survey by Caring.com. Almost 25% fewer American adults had wills in 2020 compared to 2017. Even older adults are less likely to have wills. Their number dropped by 20% in 2019, and 25% fewer middle-aged adults had wills in that time frame.

Leaving a will ensures that your wishes are carried out if at all possible and your property is distributed in the way you choose. It can also make probate of your estate much easier. Probate is the legal process by which ownership of your property is transferred to living beneficiaries. The court also uses the probate process to establish the validity of a will when the deceased left one. You would designate an executor in your will, someone to manage your estate through the probate process and see to it that your wishes are carried out.

A Will vs. No Will

Dying intestate—without a will—doesn’t mean that your loved ones will avoid a court proceeding. Intestate estates still require probate, but state law gets involved to determine who gets your property because you didn’t outline your wishes in a will. Each state has its own legislative code for intestate succession: who gets to inherit first and in what percentages, and who won’t inherit unless everyone in line ahead of them is also deceased. The hierarchy in most states places surviving spouses first in line, followed by the decedent’s children, then parents, siblings and finally more distant relatives. Individuals who aren’t related to the decedent are left out entirely.

Every state has a scheme that will dictate the steps of intestate administration, but the typical process goes something like this:

  • Someone initiates a case in probate court.
  • The court determines that there is no will and appoints an administrator rather than an executor, usually a family member or heir.
  • The administrator gathers the deceased’s assets, identifies the heirs, and notifies the deceased’s creditors.
  • The administrator liquidates estate assets to the extent necessary to pay the deceased’s debts, taxes, and the costs of estate administration, such as attorney’s and accountant’s fees.
  • The administrator distributes the remaining proceeds and assets according to the intestate succession schedule set out in state statutes.
  • Intestate administration is often a lengthy, inefficient, and expensive proceeding because the administrator is usually required to seek permission from the court for each of these actions. The administrator will spend much time requesting court orders and attending hearings. An intestate administration often takes two years or longer.

Untitled Assets

Some assets can pass directly to an heir if there’s no need to officially pass title to the property. Personal property like furniture and jewelry usually won’t have documentation to establish ownership. There may be no need to go to court if your estate is comprised entirely of untitled assets unless your heirs can’t agree among themselves on how to distribute this property.

Assets That Pass Outside Probate

Some assets will pass directly to your heirs outside the probate process even if you do leave a will.

  • Your spouse will take sole ownership of at least their share of community property if you’re married and live in one of the community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Wisconsin, and Washington.
  • Some assets transfer automatically because they’re contractual in nature—you designated a beneficiary who will take ownership when you die. They include life insurance proceeds, annuities with death benefits, and many retirement accounts.
  • Bank accounts often have “payable-on-death” provisions that allow you to designate a successor.

In each case, there’s no need for the intervention of a probate court because the account already has a legal means by which to transfer to your beneficiary or successor.

The Role of Trusts in Estate Planning

A trust is an entity or an agreement that allows you, as the grantor or donor, to transfer property to someone known as the trustee for the benefit of a third party, called the beneficiary. Trusts are often used in estate planning to take advantage of favorable tax treatment, to place conditions on the use or distribution of assets, or to allow the heirs to take possession of assets without a probate proceeding. The trustee holds the assets in a fiduciary capacity. They have a high responsibility to see that the assets are preserved for the beneficiaries. A living trust is created during your lifetime, and it provides a way for you to preserve and retain control over your assets even if you should become incapacitated. It can alleviate the need for a guardianship or conservatorship if you’re unable to make decisions on your own. A testamentary trust is one that’s formed according to terms contained in your will. It doesn’t exist until you die. Your executor would then create the trust, transferring some or all of your property into it.

Revocable vs. Irrevocable Living Trusts

Living trusts are either revocable and irrevocable. You can name yourself as the trustee of a revocable trust, retaining control over the assets you transfer into it during your lifetime. This type of trust can provide a lot of flexibility during your lifetime, including the ability to revoke or dissolve the trust as your needs change. You can provide for a successor trustee to take over upon your incapacity or death. Irrevocable trusts can’t be changed once assets have been transferred into them. They can’t be revoked or undone—the transfer of assets is permanent. But irrevocable trusts generally allow for the best estate tax consequences. A revocable trust will become irrevocable upon your death because you’re no longer available to amend or revoke it.

Trusts for Specific Purposes

There are many different types of trusts, and state law will determine which of them are recognized in your state. Trusts are also subject to some federal laws, particularly with regard to how they’re treated for estate tax purposes. Federal estate taxes can be assessed if the property exceeds a certain minimum value.

  • A spendthrift trust can be used to preserve your assets, allotting bequests incrementally and under certain terms, for beneficiaries who are less than responsible with money.
  • A special needs trust ensures that an heir with special needs will have sufficient assets to provide for those needs without jeopardizing their government benefits.
  • A life insurance trust collects insurance on the grantor’s life and administers it to beneficiaries. It’s irrevocable and can be used to avoid estate taxes.
  • A QTIP trust provides income for a spouse, then passes the remainder of the assets to other heirs.

Be Prepared

Wills and trusts can be used to accomplish many goals, and they can be as flexible as your needs and wishes require. Ensuring that those needs and wishes are carried out requires careful planning in choosing the best trusts or the best provisions for your will.

Read more related articles at:

What You Should Know about Wills and Trusts

Estate planning 101: Your guide to wills, trusts and all your end-of-life documents

Also, read one of our previous Blogs at:

Spring has Sprung. When Should I Start my Estate Plan? Now!

Click here to check out our On Demand Video about Estate Planning.

Avoid Probate

Why You Might Want to Avoid Probate and How to Do It

Why You Might Want to Avoid Probate and How to Do It

Why You Might Want to Avoid Probate and How to Do It. You’ve probably heard that probate is a long, expensive nightmare that should be avoided at all costs, or you might have heard that it really isn’t that bad after all. In fact, both scenarios can be accurate. It often comes down to how complicated and extensive an estate is. Some estates are so small they don’t even require probate. Others are quite large, requiring deliberate and meticulous legal planning to avoid a probate snarl. In either case, you might want to arrange your estate to avoid probate for a few common reasons ranging from a cash crunch for your heirs to a total lack of privacy about your personal affairs.

 

Your Family Might Have No Immediate Access to Cash

It can take weeks or even months to access a deceased person’s cash. Your heirs can be stuck footing the bill for everything from the funeral to your household utilities during that time if your estate must be probated. Your family probably won’t be able to access the cash in your bank accounts during this time period, either. They’ll have to maintain property insurance and pay taxes and possibly storage fees until probate is officially opened, and that can’t happen without a court order. Your property and insurance policies must be maintained until the estate can take over. If you have a spouse who doesn’t work and doesn’t have access to her own funds, she can be left scrambling to pay for even the most basic living expenses, like groceries.

Court approval is often required for every little step during the probate process, including running or selling the deceased person’s business, repairing or selling real estate, or abandoning worthless assets, such as timeshares with high annual maintenance fees. Numerous rules must be met, forms filed, and appraisals completed and submitted. You can avoid all this if your estate manages to bypass probate. Your family won’t have to deal with a probate judge interfering in family financial matters.

Probate Can Cost a Lot of Money

Courts all over the country are prone to financial crises, and they often hunt for revenue when money gets tight. One way to raise funding is to increase court filing fees, including probate fees. If your estate requires the assistance of an attorney, this individual must be paid, too. Many states base attorneys’ fees on a percentage of the estate. Even a modest estate comprised of a home, a vehicle, and some bank or investment accounts can result in legal fees in the tens of thousands of dollars.  All these fees are payable out of your estate, sometimes from the sale of assets you intended to leave to your heirs. Probate can mean less money for them.

Probate Records Are Public Records

Probate is a state court proceeding, so all information about a deceased person’s assets, liabilities, beneficiaries, and personal representatives are a matter of public record. Anyone at all can access your probate court file and find out just about anything he wants to know. All he has to do is ask for the entire file and it’s unlikely that anyone at the clerk’s office will care or ask why. Worse, entire probate files are available for viewing online in some states. People don’t even have to go to the courthouse to request a file. Avoiding probate keeps your family matters and your financial information private.

How to Avoid Probate

A deceased person can’t legally own property, so probate becomes necessary when ownership of an asset has no other legal means by which to pass to a living beneficiary. Speak to an estate planning attorney about how to title your property so probate isn’t required to move ownership. You might name your spouse or another family member on a bank account, or designate an account beneficiary on a payable-on-death account. You can place your assets in a revocable living trust and include terms for what you want to happen with them in your trust formation documents. You can hold title to real estate with rights of survivorship. All these options bypass probate, but it’s important to speak with an attorney because the exact rules can vary by state.

Read ,more related articles at:

What Is Probate and How Can You Avoid It?

HOW TO AVOID PROBATE: SIMPLE STEPS TO TAKE NOW TO AVOID HEADACHES LATER

Also, read one of our previous Blogs at:

Avoiding Probate with a Trust

Click here to check out our On Demand Video about Estate Planning.

Talking to Parents about Estate Planning

How to Talk to Your Parents About Estate Planning

How to Talk to Your Parents About Estate Planning

It’s a hard conversation to have but a necessary one

Discussing estate planning with your parents is a conversation that can be difficult to have. You might not want to think about the day that they are no longer here, or even consider that they might experience a decline in health that severely limits their ability to think clearly or communicate with you. However, if you don’t have this conversation when your parents are able to share information and instructions, their passing or incapacitation will be even more painful as you grapple with their estate. Results from the December 2020 Wells Fargo/Gallup Investor and Retirement Optimism Index showed that 43% of investors between the ages of 50 and 64, and 17% of those 65 or older, have neither a written will nor written estate plans. Furthermore, nearly 40% of investors either don’t ever talk to their parents about estate planning, dread the talk, or avoid it. Though an estate planning conversation can be intimidating, there are several steps you can take to make the dialogue happen in an effective and inclusive way.

If you have brothers and/or sisters, you should include them in the conversation with your parents. For one, you’ll want to maintain the appearance of fairness, Eido Walny, founder of Milwaukee-based Walny Legal Group, told The Balance in an email. “Fair is in the eye of the beholder, and what is fair to one person may not be fair to another,” Walny said. “The best way to overcome this obstacle is to have a frank, open conversation that includes all the stakeholders. This prevents fighting later over what you think your parents ‘would have wanted.’” Including siblings can also tamp down any sort of distrust among family members. “All too often, there are contentions in estate administrations that mom or dad would not have done something but for the meddling of one of the kids,” Walny said, pointing out the legal term for this is “undue influence.” Another factor here is that parents worry their children will fight over their estate after they pass—but, by not having a family meeting to talk about estate planning, they’re actually increasing the chances of this happening, Brian Simmons, co-founder of Las Vegas-based trust-services firm IconTrust, told The Balance by email. “This can lead to litigation, and the only people who win in litigation are the attorneys,” Simmons said. “We have seen estates litigated over the silliest of things; usually personal property, like trinkets, equipment, furniture, artwork, etc.”  If your parents don’t have a plan, ask them to create one where their expectations are upfront to avoid problems in the future.

Find the Right Time to Talk About Money

As with most thorny topics, deciding when to talk to your parents about estate planning may cause apprehension about the discussion, too. However, it’s not a matter of whether the conversation should take place after dinner on Tuesday, or before Saturday brunch; time is of the essence. Some people advise waiting until there’s a life changing event, like a new birth, or changes to the tax law, but this is a risky approach, according to David Bross, a senior estate planner at Cincinnati-based Truepoint Wealth Counsel.“The right time to talk to your parents about estate planning is now, because, unfortunately, nothing in life is certain,” he told The Balance via email. Estate planning not only involves planning for assets at death but also includes planning for situations like health care and day-to-day financial decisions.  “Health care powers of attorney and financial powers of attorney provide direction as to who will handle health care/financial decision making for a parent should that parent be unable to act for himself or herself during his or her life,” Bross said.

The unpredictability of 2020 hammered home the frailty of life and how quickly someone can succumb to an ailment. But besides the possibility of your parents getting sick, there are other reasons to have this conversation now. In short, it’s not always about an inheritance or power of attorney, according to Zachary Morris, co-founder of Atlanta-based Paces Ferry Wealth Advisors.  “Many adult children may be planning for their own retirement, and the cost of caring for an ailing parent can derail even the best-laid retirement plans,” Morris told The Balance by email. “Knowing that your parents have done well financially, and maybe even have long-term care insurance, can go a long way in preparing for your own retirement.” Plus, you need to know if you have a role in their estate plan. For example, if you are named the executor of the estate, do you know where all the necessary estate documents are?  “Making sure your parents have a proper estate plan in place can help avoid unintended consequences regarding how the estate settlement is handled—potentially by a court-appointed executor if someone hasn’t already been named in the will,” Morris said.

Learn What Estate Planning They Have Done—And If Anything Has Changed

If your parents have already done some estate planning, it’s important to have a conversation to see if anything needs to be updated. “If they haven’t done anything, you may have to start from scratch,” Lisa Anne Haidermota, estate planning attorney and principal owner at Tampa-based Lisa Anne Haidermota, PA, told The Balance by email. “They also could have named executors when the children were minors and those executors have passed away.”

Child-Specific Trust Rules May Be Outdated

If your parents established a trust when you and your siblings were minors and you are now adults, changes may need to be made. “The safeguards that they set up in the trust may no longer be relevant,” Haidermota said. “Their concerns for their minor children may have changed as they reached adulthood, and now they want their adult children to serve as their executor, trustee, power of attorney, or health care surrogate.”

Multiple Marriages May Have Complicated Things

Jonathan Breeden, founder of North Carolina-based Breeden Law Office, pointed to another reason why you need to know what planning your parents have done. “There should be specific instructions about what goes to the husband/wife versus what goes to the children,” Breeden said in an email to The Balance. “This can be especially helpful for someone who got married a second (or third) time.” The problem for some people is getting their parents to agree to share this information, some of which can be sensitive. “Some parents see this as an issue of privacy and are hesitant to share such details,” Walny said. “[However], understanding your parents’ financial footing is important because it may open or close options with regard to nursing-home or long-term care planning.”

Helps Kids Know Their Roles and Avoid Surprises

Walny has also seen situations in which a substantial inheritance caused severe shock for the children who received it. Conversely, if the children aren’t receiving as much as they thought, this may affect their life decisions as well. Hearing parents explain why they made certain decisions about who gets which asset and what role you and your siblings play can clear up uncertainty. “If all children understand their roles and their possible inheritance, there are little to no questions once the estate plan is needed,” Bross said. “Each child has had an opportunity to hear from [their] parent as to why [the parent(s)] chose a certain plan or a certain person to manage their affairs.”

Cover Key Estate Planning Topics

It’s unlikely that you’ll cover everything in one conversation. Some of the issues may require your parents to pause and think about their decisions. But when the series of discussions is over, you should have covered the following key estate planning topics.

Estate Plan

“During this conversation, we review the estate plan with all of our client’s children to ensure each child has an understanding of what the documents say and how they will be administered,” Bross said. Since everyone is present (in theory), the parents can discuss why the plan was put into place and ask questions to ensure that everyone is on the same page.

Net-Worth Statement

A net-worth statement helps children get an overall understanding of their parent’s wealth. “While this helps the family understand the potential inheritance, it can also give children peace of mind that their parents have the wealth to cover expenses later in life, such as health expenses,” Bross said.

Family Business  

If there is a family business, Bross recommended discussing a succession plan for the business. When the parents pass, who will take over the business and in what capacity?

Power of Attorney

“An estate plan should also include a power of attorney to grant authority to handle financial matters,” Seta Keshishian, a financial advisor at JSF Financial in Los Angeles, told The Balance by email. Any competent adult (age 18 or older) can receive power of attorney The Florida Bar recommends choosing someone who is trustworthy and reliable.

Power of Attorney for Health Care

It’s possible that your parents may become incapacitated, and when that happens, your parents should have someone chosen who can make medical decisions on their behalf. Keshishian advised adult children to initiate conversations with their parents to talk through their wishes for medical care, long-term care, and life-sustaining treatment. “Often, emotions can run high in an emergency situation, so it’s helpful to have clear instructions from the parent in advance,” she said.

Power of Attorney for Digital Assets 

“This person would ensure that online accounts, computers, and phones can be accessed,” Keshishian said. “It is important to confirm that all trust assets are properly titled, including the primary residence and brokerage accounts.”

Trust

According to Natalie Elisha Goldberg, founder of Goldberg LLP in Evergreen, Colorado, trusts have actually entered the mainstream for the middle class. Trusts may help families avoid the probate process, and even probate court. If a trust is set up in advance, it could help cover the cost of expensive nursing-home or long-term care in the future.

Set Long-Term Goals Together

Setting long-term goals together can prevent unpleasant surprises, but it will take open and honest communication. “It’s incredible that the values of parents and kids are often very different, and we often see parents struggle to treat their kids ‘equally’ and ‘fairly’ without understanding what those terms mean to the kids,” Walny said. For example, while parents may focus on financial equality, Walny said the kids may be more concerned about items that have sentimental value. Sometimes, these conversations may not be pleasant. That’s why Goldberg recommended having a team of financial professionals present, such as an attorney or tax advisor. In fact, her law firm also calls in a financial advisor and CPA for family meetings—and they allow grievances to be aired so all of the family members can be seen and heard. Remember, another key to success is understanding that setting long-term goals isn’t a one-time event, according to Gino Pascucci, a fellow co-founder with Simmons at IconTrust.“You don’t ‘set it and forget it,’” Pasucci said in an email to The Balance. “We have found the most successful families have periodic meetings—i.e., yearly or on some set schedule—with the parents’ attorney or financial professional present, as this helps everyone stay on task and set long-term goals together as a team.”

Read more related articles at:

How to talk with your parents about their estate plan, even if they don’t want to

How to talk to your parents about their estate without seeming like a greedy jerk

Also, read one of our previous Blogs at:

Millennials, It’s Time to Talk Estate Planning With Your Parents

Click here to check out our On Demand Video about Estate Planning.

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