Common Estate Planning Mistakes

When it comes to estate planning, people make mistakes most commonly in one of two areas:  First, they fail to have any kind of estate plan at all.  Secondly, once they have a plan, they forget about it.

An estate plan is not a static document because life isn't static.  Circumstances change.  Asset values go up or, as is more common in recent years, down.  Divorces, remarriages, new children, deaths, selling assets, buying new assets -- all of these things can make the best estate plan meaningless.  An outdated estate plan can leave your family vulnerable, unable to pay estate taxes, for example, or even unable to pay funeral expenses because of lack of liquidity.

Any time you have a change in your life you should review your estate plan.  If this is done periodically, the changes will be minimal, but the savings, not only in dollars but in hurt feelings and even breaking up of a family, can be huge.

Incentive Trusts

I've been following an interesting string of comments on "incentive trusts."  These are trusts that tie distribution of the trust corpus (money) to the beneficiaries to the beneficiaries' achieving some benchmark, such as graduating from college, kicking a habit or otherwise conforming to some standard the donor wants.  The discussion has centered around whether attorneys should get involved in these trusts.  The biggest objection, from a drafting standpoint, is that such trusts have a great potential for litigation, especially where the standard to be achieved is somewhat nebulous.  For example, what does it mean to kick a habit?  Graduating from college is more concrete but even then there is wiggle room.  A particular college?  A particular major?  A minimum GPA?

Perhaps the best comment was by someone who said, ask the client, "If your child won't do this for YOU, what makes you think she'll do it for your MONEY?"  To that I would add, if your relationship with your child is so shallow that she will do it for your money but not for you, why would you want to leave her anything with strings attached in any case?

Simple Wills and Living Wills

Do you need a simple will or a living will?

Probably you need both. One is effective before you die, the other after death. A "simple willl" is a generic name given to a will that has only a few dispositive provisions. The typical simple will leaves everything to the surviving spouse, or, if the spouse does not survive, to certain specified beneficiaries, such as children. It's called a simple will because it is simple, meaning it isn't a complicated document. A simple will takes effect upon death.

A "living will," on the other hand, becomes effective during life; hence the word "living." A living will is designed to set forth your wishes and desires about certain end-of-life matters, such as the extent to which your family and medical personnel should go to keep you alive. Many people do not want to remain alive if they are in a permanent vegetative state, unresponsive, comatose and unable to care for themselves in any way. A living will directs that if you are in such a state, you want life support (such as food or breathing assistance) to be removed, and you want to be allowed to die. In Utah a living will has a formal name: Advance Medical Directive, and state law specifies exactly what needs to be in the Directive to make it legal.

Regardless of whether you have a simple (or other) will or a living will, both need to be executed with certain formalities, and either can be changed at any time before death.

Credit Cards or Retirement?

One of the best reasons to file bankruptcy may be to plan for your retirement. If you're paying the minimum amount each month on credit card debt, you can't be saving for retirment. If you want to retire in any form, you have to start saving now.

Suppose you have $20,000 in credit card debt and all you're paying is the minimum amount each month. Under most credit card agreements, the minimum varies, based on the outstanding balance, and is often something like 1.5% of the balance. Paid at $300/month that $20,000 will take nearly 37.5 years to be paid in full at an 18% interest rate, which is pretty cheap for a credit card.

Now suppose that instead of paying the debt, you file bankruptcy and get a discharge. Then you pay $300/month into an IRA that earns 6% a year. At the end of 37.5 years, you will have over $500,000 in a retirement account.

Lots of people feel they are being irresponsible if they don't pay their debts. Being responsible also means that you have made adequate provision for retirement so you are not a burden to your family or society. Bankruptcy may be the responsible choice.

Estate Tax Update

2010 is nearly half over and Congress still hasn't done anything about the estate tax. It expired on December 31, 2009, leaving the United States without an estate tax for the first time since 1916. It's scheduled to be resurrected in 2011 at levels unseen since the Clinton administration.

For now, someone like Dan Duncan, who died earlier this year leaving an estate worth an estimated $9 billion, can pass his estate free of any tax to his heirs. Had Mr. Duncan died in 2009, the estate would have been taxed at 45%, meaning just over $4 billion would have gone to the IRS. Had he survived until next year, when the estate tax is scheduled to come back at 55%, his heirs would have lost nearly $5 billion.

But the real losers in the estate tax mess are the merely rich, those with estates between $1 million and $3.5 million. In 2009, the estate tax exemption was $3.5 million, meaning estates under that amount didn't pay any tax. In 2011 the exemption will drop to $1 million and the 55% rate will kick in. Many of those people have set up their estate plans under 2009 rules on the assumption they would owe no tax. If they don't act quickly, they could end up losing a bundle.

Family Meetings in Estate Planning

One often overlooked tool of estate planning is to hold a family meeting. There are several good reasons for doing this, and a few reasons why many people don't hold a family meeting.

A family meeting first and foremost should be an opportunity to make wishes and desires known and acknowledged and documented so they are carried out. This last item, documentation, may require the services of a qualified attorney. Simply writing down that mom and dad want the house to go to a certain person might not be enough. Everyone might agree that is what mom and dad wanted, but unless there is a will or other legally effective device, it might not happen.

Another reason for a family meeting is to ease anxieties about what will happen. It's a time to discuss last wishes such as funeral arrangements, burial/cremation, etc. While this is hard to do, afterward everyone feels a sense of relief.

At a family meeting, tax advantageous strategies for passing wealth can be discussed, such as family trusts, limited liability companies, life insurance policies to provide cash flow to continue a business and the like.

A very important function, and one often overlooked, is to preserve family harmony. At a family meeting, everyone's viewpoints can be aired. While it is the prerogative of those whose estates are in issue to decide where and to whom they leave things, by getting everyone together to discuss things, when the will is finally read there should be no big surprises.

Don't overlook a family meeting as part of your estate plan.

Review Your Estate Planning Documents

In the last estate planning post, I noted that Congress had failed to extend the estate tax, and this was creating all sorts of uncertainty for planners in 2010. The uncertainty doesn't end with what might be done in the future. The repeal of the estate tax could throw a monkey wrench into existing estate plans.

This is because many plans were writtent to take advantage of the spousal exemption. Under the Internal Revenue Code, a certain amount of the estate was exempt if passed to a surviving spouse. As a result, many estate plans provided for a division of the estate, with a portion equal to the spouse's exemption going to the spouse, the rest going into a trust or somewhere else. With the repeal of the estate tax, these plans could be read such that the surviving spouse gets nothing, i.e., since there is no estate tax, there is no spousal exemption. Thus, everything goes into the trust or elsewhere, where the spouse can't get at it. This is clearly not what most people would want for a surviving spouse, but it might be exactly what happens.

Review your estate planning documents.

Do It Yourself Wills

I just read a blog post from a woman touting an online legal service provider, telling the world how great and easy it is to do your own will online through this company. I've previously posted about the pitfalls of do it yourself bankruptcies, but a do it yourself will is even worse. At least if you make a mistake in your bankruptcy, you have a chance to fix it. If you screw up your will, not only can't you fix it, you won't even know something is wrong.

There are a host of potential problems with a do it yourself will and estate plan. Yes, you can provide for someone to have legal custody of your children. But what about providing for them? What instructions are you going to leave and how binding will those be about whatever they inherit. For example, you do have life insurance don't you? Do you plan to leave that to the kids outright? To a 12-year old? Or are you just going to name your BFF as the beneficiary under the policy and hope she knows what you would do?

Think about it. Would you feel comfortable about buying a kit and instructions to build a car or a house from an online company and do it yourself? Doesn't your family deserve better?

Estate Planning for Blended Families

When a person remarries, either after a divorce or death of the former spouse, and children from the first marriage are involved, a whole host of estate planning problems crop up. Remarriage may not be the joyful event to the children that the marrying parent wants it to be. Questions naturally arise over who gets what. Here are some tips for making a second marriage smoother when it comes to estate planning.

First, discuss matters with your new spouse. He/she may also have children of a former marriage, which complicates the issue. Discuss your plans and hopes for your children and your new spouse's children.

Secondly, in your discussion, set some goals. Are your children minors who still need some form of support? If so, providing that support should be a major goal. If they are grown and have families of their own, what about grandchildren? Decide what you want to accomplish.

Third, consider a trust. In my view, anyone with an estate to pass to heirs should have a trust. It will allow flexibility in distributing your assets. When it comes to real estate, if the couple is older and one of the goals is to provide a place for the surviving spouse to live, consider a life estate to that spouse with the remainder passing to the trust.

Fourth, talk to your family. Don't surprise them after your death when the will is read.

Fifth, talk to a professional. Planning for blended families is one of the most complex tasks in estate planning. Don't try to do it yourself.

A 529 Education Savings Plan as Estate Planning Tool

A 529 education savings plan is a plan where you select the recipient ("beneficiary") and make contributions for that person's post-high school education. The beneficiary can be a child, grandchild, nephew, niece or just the neighbor's kid. You make the contributions in any amount you want. You can change the investment strategy or even the beneficiary. And those contributions can be used to reduce your overall estate for estate tax purposes.

The law currently allows a lump sum contribution of $65,000 per beneficiary, with an unlimited number of beneficiaries. That is money that won't be in your estate at the time of death, and therefore not subject to the estate tax. Remember that the current limit for estate tax is $3.5 million, but a lot of people expect the Obama Administration to push for a reduction back to the $1 million limit that existed nearly 20 years ago when Clinton was president.

There are some quirks about 529 contributions. For example, you cannot make other reportable gifts to the recipient during the five-year period after the gift, and, if you die during that five year period, a pro-rata share may come back to your estate. But it's a good way to reduce your estate.

If you're a grandparent and own the account (it is possible to set up the account in the beneficiary's name), the amount in the account is not counted when it comes to determining whether the recipient is eligible for student aid, such as grants and loans.

Don't Forget the Passwords

Every estate plan should include a list of critical information that is easily accessible in the event of death or incapacity. This list should have on it a list of bank accounts, safe deposit boxes (and the location of the keys), other financial accounts (stocks and bonds, online accounts, etc.), the location of your estate planning documents and the like. While you're making it up, don't forget to include the passwords to your online presence, be that eBay, Amazon, Yahoo, LinkedIn, Facebook, everywhere you visit in cyberspace.

Death and Taxes

To many people, estate planning is all about avoiding the estate and inheritance tax. That's why a lot of people give little thought to estate planning, because, as we've discussed, they don't consider themselves wealthy enough to have to worry about estate taxes. We discussed why estate planning is important even aside from taxes, but today we are discussing estate taxes.

There is a lifetime exemption amount for estate taxes. It's a combined estate and gift tax exemption, so to the extent that the exemption is used to give gifts tax free during life, it isn't available at death. But putting that aside, right now (2009) the estate tax exemption is $3.5 million. In 2010, the estate tax is slated to go away altogether. But Congress will probably renew it in 2011 and later, and there is talk that the exemption will be scaled back to the $1 million it was under the Clinton Administration.

Everything that you own at your death is included in your estate. This means all land (houses, rental properties, vacant land, vacation homes, etc.), bank accounts, CDs, stocks, bonds, vehicles, computers, everything down to your china and silverware. Even in today's depressed market, if you have a home, with everything else included, you could be bumping up against the $1 million mark. If that's the case, keep a close eye on the estate tax debates. And if you're up over $1 million, you definitely need to talk to an estate planning attorney.

Of course, everyone should have basic estate planning documents: will, durable power of attorney, and living will (medical directive).

A Trust as an Estate Planning Tool

Many people think that because they are not wealthy, a trust isn't for them. In fact, a trust can be an effective estate planning tool, especially for families with younger children. A testamentary trust (see last week's post) can allow the trustee the flexibility to provide for the needs of the young children should something happen to the parents. Without a trust, any money (such as life insurance proceeds) would pass to the children. However, because they are minors, a guardianship would have to be established. The guardian's role is to preserve the money until the children reach the age of majority. This means a guardian lacks the ability to provide anything more than basic necessities. For example, if a child shows exceptional musical talent, a guardian may not be able to tap into the money to provide for private lessons. A trustee, on the other hand, given appropriate instructions and flexibility by the trustors, could do that very thing.

Don't assume that just because you aren't "wealthy" a trust isn't for you.

What Types of Trusts are There?

As we discussed last week, a trust is just a way of holding and disposing of assets. I like to think of a trust as a basket to put things in. In general, there are four main types of trusts: Revocable, irrevocable, inter vivos, and testamentary. A trust is either revocable or irrevocable, and either inter vivos or testamentary, though it's possible for an inter vivos trust to be either revocable or irrevocable.

A revocable trust is one that can be revoked by the maker, usually called the trustor or settlor, at any time. An irrevocable trust is one that is permanent; it cannot be revoked once made. An inter vivos trust is a trust made during the trustor's life ("inter vivos" means "during life"). A testamentary trust, on the other hand, is one that is created by the trustor's last will and testament, and doesn't arise until after death. Because of this fact, a testamentary trust is of necessity an irrevocable trust.

A trust is a contract between the maker, the trustor, and another person, the trustee, who holds property given to him by the trustor for the benefit of third persons, called the beneficiaries. The trust agreement sets out the powers and duties of the trustee and usually specifies the conditions on which the trustee can use or give the trust property to the beneficiaries.

What Is a Trust?

If you talk to anyone about estate planning, you're likely to hear the word "trust." What is a trust and what does it mean in estate planning?

A trust is simply a vehicle to hold assets. The reasons for creating trusts are varied, but usually including wanting to protect assets and avoid probate. Probate is the legal process by which title to assets are transferred upon the owner's death. By putting the assets into a trust during your lifetime, you can avoid probate.

However, merely creating a trust isn't enough. You still have to fund the trust, which means putting title to the assets in the name of the trust. Too often people create a trust but never fund it. In that case, the trust is like an empty basket. It would be more useful if there was something in the basket.

Whether or not a trust is right for you, and, if so, what kind, are questions best asked of a competent estate planning attorney.

Sorting Through the Mess

A well executed estate plan is very little help if key documents can't be found. The most important are the will and any trusts that may have been executed. But besides these obvious documents, financial records are just as important. The executor of your estate or the trustees under the trust need to know what they are being called on to administer.

While most people don't want to think about dying, and few people sit around thinking of what a mess those left behind might have to deal with, the fact is that besides your estate plan, you should leave detailed instructions about what assets you owned. The simplest way to deal with this is to keep a loose leaf notebook that is current in terms of what you own (real property, bank accounts, stocks, vehicles, etc.) and where it is located. Then make sure those who will deal with your estate know where to find the notebook.

By the Numbers

According to a 2007 survey of adult residents of the U.S. found that 55% don't have a will. Fifty-two percent of Anglos have wills, compared to only 32% of blacks and 26% of Hispanics. Forty-one percent of people have living wills, up from 31% in 2004, and 38% have designated someone as a health care attorney-in-fact, up from 27% in 2004. Ten percent of the people surveyed say they don't have a will because it's too depressing to think about. Another 9% say they don't know who to talk to, and 24% say they don't have enough assets to warrant estate planning.

Source: www.lawyers.com.

Stocks Worthless in Bankruptcy

With all the talk about GM, Chrysler and other huge American icons filing bankruptcy, the question arises, what happens to my stock in these companies if they file? The answer, in most cases, is the stock becomes worthless. Stockholders are owners of the company. As such, they come last when a company is liquidated. Creditors get paid before owners, and only if anything is left after all the creditors are paid in full do owners get as much as a penny. Even if the company goes through reorganization, which is what many airlines did and GM and Chrysler are expected to do, very often the shareholders get almost nothing for their shares.

High Stakes Estate Planning

Most of the time estate planning is boring and dull. But occasionally there is high drama. Take the case of Brooke Astor, matriarch of New York's high society and heir to the Astor name. Before she died at age 105 in 2007, Mrs. Astor changed her will to benefit her son, Anthony Marshall and her attorney, Francis X. Morrisey. Prosecutors in New York claim that Marshall and Morrisey exploited Mrs. Astor's Alzheimer's disease and induced her to sign amendments, known as codicils, to her will in the years before her death. They plan to paint a picture of a declining elderly women gradually losing touch with reality, through witnesses such as housekeepers and friends, among whom is expected to be Annette de la Renta, wife of fashion magnate Oscar de la Renta. The trial is expected to last two months.

However, the defendants claim that Mrs. Astor was not at all incompetent when she changed her will, and proving her incompetence may well be a difficult task. Alzheimer's patients often have moments of lucidity, and the prosecution will have to prove that Mrs. Astor was not in one of those moments at the exact instant that she signed her codicils.

Mrs. Astor's son, Anthony Marshall, is her only child. His father was Mrs. Astor's first husband. Her third husband, Vincent Astor, was the son of John Jacob Astor IV, who made his fortune in real estate and died in the sinking of the Titanic.

The Estate Planning Team

Estate planning isn't the sole province of lawyers or financial advisors or accountants or any one person. To create a solid estate plan, you need advice from people with training in the law, finance, taxes, and insurance, to name a few. For example, a lawyer can set up a trust, but a trust is just an empty basket into which you put things. Those things are financial assets. To know what things to put into the basket, you need help from financial planners (or you need to feel comfortable that you can do it yourself). What you put in the basket might have tax consequences, either now or when you die, which is why you might need an accountant or tax professional. You might also decide to make the trust the beneficiary of a life insurance policy, so you would need to talk to an insurance specialist. Don't make the mistake of thinking you can do it all yourself or even with the help of one or two advisors. If one of your advisors tells you he or she can do it all, maybe it's time for a new advisor.