Write-A-Will Month and Estate Planning

March 2, 2015

Write-A-Will Month started on Sunday. Yes, it’s a bit of a contrivance, advanced by the Planned Giving Roundtable (now called the Partnership for Philanthropic Planning) and championed by nonprofits, but the month provides an opportunity to think about estate planning and getting your affairs in order.

I’ve shared pieces about estate planning on several occasions. (Click on Probate and Estate Planning under Categories on the right side of your screen for links.) Today, I want to address some myths about estate planning, probate, and end of life issues. Some have been mentioned before but here are my Great Eight (in reverse order):

8.  My Power of Attorney Has Me Covered. A power of attorney is cheap, and it has its uses, but transferring assets at death is not one of them. A POA terminates on your death, so it’s a useless as a tool for handling your estate.

7.  My Spouse or One of My Kids Can Handle My Affairs. Often, a spouse or child can serve competently as a Personal Representative or Trustee. Not always, though, and even if a spouse or child has the skill-set to handle matters, family conflicts or time constraints can create problems. In these situations a Licensed Fiduciary can be an excellent alternative.

6.  Without a Will or Trust, the Government Takes My Money. Intestacy occurs when you die without a proper will or trust. In that event a set of rules apply about who gets what. Basically, your spouse takes; if you’re unmarried, your kids get everything; if you have no kids, everything goes to your parents; dead parents, and everything goes to your siblings, etc. The government takes nothing, except in the rare instance where no heirs can be located. Having a will or trust provides you with the ability to make decisions, but intestacy follows a path that “keeps it in the family.”

5.  Probate Costs a Fortune. Very expensive probate cases happen, most often when devisees—the people who take under a will—fight with one another. (Attorneys sell smarts and time, and when people fight, time gets spent. Lots of it.) Without a fight, probate cases can often be handled for a few thousand dollars, sometimes for about as much as an attorney or document preparer will charge you for a fancy trust. (By the way, trust battles occur too!)

4.  With a Probate Everybody Knows My Business. Probate files are accessible. However, estate inventories need not be filed with the court, accountings can be filed under seal, and many other documents qualify for “sealed” status. (Opening a “sealed” document requires something akin to an Act of Congress.) So, privacy should not be a big concern.

3.  Without a Trust, There Will Be a Probate. In many cases, even with people who die with substantial assets and a will, good planning can avoid the need for a probate. Tools like pay-on-death bank and brokerage accounts, beneficiary deeds for real property, and gifting of personal property before death can avoid the need for a probate and the expense which is often associated with a trust.

2.  The Government Taxes All of Us at Death. The federal lifetime exemption for estate and gift taxes is $5,430,000 per person, ($10.86m for a married couple.) If you have or will have sums approaching those numbers—and they do adjust for inflation, and Congress won’t likely lower the exemption—federal estate and gift taxes may matter; otherwise, you’re in the 99%+ category, as far less than one percent of all estates pay any federal estate tax. (Here’s a link to information about state estate and inheritance taxes.)

1.  Estate Planning Is All About Taxes. Many things matter as you plan for not being around. A child with special needs. What to do with a successful (or not so successful) business? Supporting organizations that make a difference? Honoring people who have made your life better? Taxes almost never matter and, generally, planning with estate taxes in mind limits options and costs money.

Some final thoughts. First, I draft plenty of trusts, and they are appropriate in many cases. Unfortunately, in too many instances an expensive trust document gets sold—often by a non-attorney who markets against “those attorneys”—in an inappropriate setting. And, in many of these cases, assets never get transferred to the trust, making it a truly worthless document.

Second, if you have estate planning documents and they have not been reviewed in several years, you’re overdue for a review. Generally, the more you have, the more need there is for a review, and you should be seeing a professional whenever something significant happens in your life. My rule of thumb in normal circumstances? Every five years.

Finally, people don’t like to deal with the notion that they will die. Imagine! Use Write-A-Will Month as a motivator to “get it done.” (I’m available to help, and can be reached at 520.624.8886 or mrubin@mcrazlaw.com.)

[I am speaking on March 19 for El Rio Community Health Center, on March 24 for Literacy Connects. For more information contact me at 520.624.8886 or mrubin@mcrazlaw.com.]

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