Many people spend more time planning a vacation than they do thinking about who will inherit their assets after they pass away. Although estate planning isn’t an enjoyable activity, without it, you don’t get to direct who gets everything for which you’ve worked so hard.
Investopedia asks you to consider these four reasons why you should have an estate plan to avoid potentially devastating results for your heirs in its article “4 Reasons Estate Planning Is So Important.”
Wealth Won’t Go to Unintended Beneficiaries. Estate planning may have been once considered something only rich people needed, but that’s changed. Everyone now needs to plan for when something happens to a family’s breadwinner(s). The primary part of estate planning is naming heirs for your assets. Without an estate plan, the courts will decide who will receive your property.
Protection for Families With Young Children. If you are the parent of small children, you need to have a will to ensure that your children are taken care of. You can designate their guardians, if both parents die before the children turn 18. Without a will and guardianship clause, a judge will decide this important issue.
Avoid Taxes. Estate planning is also about protecting your loved ones from the IRS. Estate planning is transferring assets to your family, with an attempt to create the smallest tax burden for them as possible. A little estate planning can reduce much or even all of their federal and state estate taxes or state inheritance taxes. There are also ways to reduce the income tax beneficiaries might have to pay. However, without an estate plan, the amount your heirs will owe the government could be substantial.
No Family Fighting (or Very Little). One sibling may believe she deserves more than another. This type of fighting can turn ugly and end up in court, pitting family members against each other. However, an estate plan enables you to choose who controls your finances and assets, if you become mentally incapacitated or after you die. It also will go a long way towards settling any family conflict and ensuring that your assets are handled in the way you wanted.
To protect your assets and your loved ones when you no longer can do it, you’ll need an estate plan. Without one, your family could see large tax burdens, and the courts could say how your assets are divided, or even who will care for your children.
Reference: Investopedia (May 25, 2018) “4 Reasons Estate Planning Is So Important”
Two out of every five people over 45 years old don’t have a prepared will. Many of them have not thought about estate planning. It doesn’t take that much to do the planning necessary to help family members who survive you, according to the Lebanon Democrat’s article “End-of-life planning beneficial no matter your age.”
The planning you do will also help your family avoid the nasty disagreements that so often happen, when no one has been told what is going to occur after a parent dies. It will help your loved ones who may not know what you would have wanted after you pass: a funeral, a big memorial service, graveside services only or even cremation.
If you die without a will, which is known as dying “intestate,” all of your assets, from bank accounts to your favorite table saw could be awarded to someone, based on the judgment of a court-appointed administrator. This person won’t know that you had a nephew who you’d promised your woodworking tools and that would include the table saw.
Start by meeting with an estate planning attorney in your community. The laws that govern estate planning are based on your state’s law, so an attorney from another state may not be familiar with the big or small differences in your state versus another state. The same goes for online wills: unless they are reviewed by an attorney in your state, you won’t know if they are valid. Your family will find out, after you have passed, and they can’t make changes. That’s probably not how you want to be remembered.
If there’s a senior citizen in the family, ask them if they have prepared a will. It’s best to do this, while they are still competent. You never know what tomorrow might bring–and that holds true for people of all ages. Many people become incapacitated unexpectedly, at all ages and stages of life. Prior planning prevents a bad situation from becoming much worse.
Here’s what your estate planning attorney will speak with you about:
Who do you want to be in charge of your estate? It should be someone who you trust without reservation. That person will become your executor, when you die.
Who do you want to receive certain possessions? We tend to think about who will inherit a house or a car, but many families argue over sentimental possessions, like jewelry or art. Epic battles have occurred over items with little monetary value.
Your estate planning attorney will ensure that you also have a living will, since you’ll need this, if you have to go to the hospital or long-term care facility and are not able to speak up for yourself.
Update your will as time goes on. Families grow and shrink, and your will needs to reflect your changing life. What if the person you named as executor dies, or moves far away? You’ll want to make sure there are people who can carry out the responsibilities you want.
Don’t forget to tell your executors that they have been named and make sure they are up for the tasks. If you have an argumentative family, will your executor be able to stand up to them? Personality is as important as understanding legal and financial issues.
Your estate planning attorney will be able to guide you through any rough spots, or issues you might be struggling with. It is better for you and the ones you love to have an estate plan, regardless of your age or health. Life changes come quickly, and it’s best to be prepared.
Reference: The Lebanon Democrat (Jan. 18, 2019) “End-of-life planning beneficial no matter your age”
The unknown events of life include financial perils. They don’t disappear just because you try to ignore them. There are more threats to your financial future and personal health than an estate tax, says Newsmax Finance in its article “Your Estate is at Risk.” There is also legal liability, which is a commonplace event in our increasingly litigious society.
For many people, the first experience with litigation is a divorce. Even in the best of circumstances, it’s a difficult situation. In a bad situation, it’s a nightmare for all concerned. What would happen if you became disabled? It’s more likely that someone will become disabled during the course of their life than that they will die prematurely.
Do you have a health care power of attorney, so someone you trust is empowered to make decisions on your behalf if you became disabled? What about a durable power of attorney so a person you trust, who also has some financial savvy, can take over for you if you can’t do things, like pay bills or manage your business?
If you don’t have these documents in place, a court-appointed person will be assigned as your guardian. That is not something you want to happen.
If you’ve created a private business, you also need to plan for succession. Too many business owners let their businesses die along with them, leaving families, employees and clients stranded. Transitioning a business for succession or to be managed in your absence takes planning.
All of these issues can be dealt with in an estate plan, which you should have created for you by an estate planning attorney. The attorney should be someone you trust, who has experience helping people with the same challenges as your situation, whether that’s a blended family or a privately held family business.
Estate planners know how to use certain methods to help individuals and families make the most of their assets, limit their tax liabilities and plan for the future. There are many different tools available, from different types of trusts to the basics, like a will, power of attorney, and health care power of attorney, to make sure you and your family have the correct protection in place.
Going through the estate planning process is a useful experience, since it gives you and your spouse a chance to review your life’s accomplishments from a long-term perspective, prepare for events like retirement or funding a child or grandchild’s college education and taking care of this important element of adulthood.
Reference: Newsmax Finance (Jan. 14, 2019) “Your Estate is at Risk”
The recent changes in the tax laws created increased year-end activity for those trying to finalize their divorces by December 31—prior to the effective date of the new rules.
The new tax laws stipulate that alimony is no longer deductible by the payor, and it’s no longer taxable by the receiver—this creates a negative impact on both parties. The payor no longer receives a tax deduction, and the receiver will most likely wind up with less alimony because the payor has more taxes to pay.
Forbes’ recent article, “9 Things You Need To Know About Estate Planning After Divorce” suggests that if you were one of those whose divorce was finalized last year, it’s time to revise your estate plan. It’s also good idea for those people who divorced in prior years and never updated their estate plans. Let’s look at some of the issues about which you should be thinking.
See your estate planning attorney. Right off the bat, send your divorce agreement to your estate planning attorney, so he or she can see what obligations you have to your ex-spouse in the event of your death.
Health care proxy. This document lets you designate someone to make health care decisions for you, if you were incapacitated and not able to communicate.
Power of attorney. If you had an old POA that named your ex-spouse, it should be revoked, and you should execute a new POA naming a friend, relative, or trusted advisor to act as your agent regarding your finances and assets.
Your will and trust. Ask your attorney to remove the provisions for your ex-spouse and remove your ex-spouse as the executor and trustee.
Guardianship. If you have minor children, you can still name your ex-spouse as the guardian in your will. Even if you don’t, your ex-spouse will probably be appointed guardian if you pass away, unless he or she is determined by the judge to be unfit. While you can select another responsible person, be sure to leave enough cash in a joint bank account (with the trusted guardian you name) to fund the litigation that will be necessary to prove your ex-spouse is unfit.
A trust for your minor children. If you don’t have a trust set up for your minor children, and your ex-spouse is the children’s guardian, he or she will have control of the children’s finances until they turn 18. You may ask your estate planning attorney about a revocable trust that will name someone else you select as the trustee to access and control these funds for your children, if you pass away.
Life insurance. You may have an obligation to maintain life insurance under the divorce agreement. Review this with your estate planning attorney and with your divorce attorney.
Beneficiary designations. Be certain that your 401K and IRA beneficiary designations are consistent with the terms of your divorce agreement. Have the beneficiary designations updated. If you still want to name your ex-spouse as the beneficiary, execute a new beneficiary designation dated after the divorce. It’s also wise to leave a letter of intent with your attorney, so your intentions are clear.
Prenuptial agreement. If you’re thinking about getting remarried, be certain you have a prenuptial agreement.
It’s a great time to settle these outstanding issues from your divorce and get your estate plan in order.
Reference: Forbes (January 8, 2019) “9 Things You Need To Know About Estate Planning After Divorce”
A Power of Attorney is just one part of your estate plan. Don’t have an estate plan? Instead of making the same old New Year’s resolutions, try making a will and an estate plan your top priority in 2019, says the Toronto Sun in the article “Where there’s a will, there’s a way.” We are reminded that when we do select a person to serve as our Power of Attorney (POA), we better make sure to appoint someone we trust.
Many people insist that they are fine and not old enough to need a POA. However, life holds surprises. Parents whose adult children are injured in a sport or accident, discover they can’t manage their kid’s finances because there was no POA in place.
Anyone over the age of 18 needs a POA and a will. The POA is used while you are alive, if you should become incapacitated and the will is used after you die. You’ll want to speak with an estate planning attorney to create both documents and an overall plan, since this is a complex area of the law and every person’s situation is different. There is no such thing as a one-size-fits-all document. The problem is, you won’t know that until it’s too late.
Another reason for an estate plan is to protect the emotional integrity of a family. Estate battles don’t just happen to celebrities. They happen to “regular” people as well. Families often fracture, when grandparents or parents neglect to share details of their financial situation or reasons for their estate plan.
Let’s say you come home from the hospital after a serious operation and find that a member of your family, without your knowing it, has decided to prepare all your belongings for your demise.
Everything in the house has a sticker on it, bearing either the name of a person who was expecting to inherit the item, or a price for an estate sale. No plans about your will were ever discussed with your children, so they had no idea what you wanted. From their perspective, they were expecting you to pass and just making sure things were properly taken care of.
Those kids probably won’t get a penny, since their eagerness was excessive. They were concerned more about possessions than their parents.
A better way to go is to work with an estate planning attorney to create a holistic plan that addresses your wishes, while you are living and the distribution of your assets when you have passed. You might want to consider holding a few family meetings with the attorney, so that everyone’s on the same page. You don’t want to come home from a hospital stay, to find your home ready for a yard sale!
Reference: Toronto Sun (Dec. 30, 2019) “Where there’s a will, there’s a way”
More than 50% of Americans don’t have a will, according to a 2017 survey by Caring.com. Spelling out how your assets should be divided, is an essential start to estate planning that can be easily overlooked.
A U.S. News & World Report’s article asks “Should You Make a Free Will Online?” According to the article, before writing your will or using an online service, you need to know the legal requirements in your area. In many instances, this is best left to a legal professional in your state.
There are plenty of online tools that will help you create a will. However, before clicking on a website’s promise, you need to evaluate the available options. There are three main ways to write a will:
- Do it yourself;
- Use a do-it-yourself program; or
- Get help from a qualified estate planning attorney.
If you draft a will on your own, you’ll need to be absolutely certain you understand all of the applicable probate, tax and property laws. People who’ve written their own wills are usually those with very basic estates, like a person with a single piece of real estate and a small amount in basic checking accounts.
If you use an online service, you’ll have access to software that walks you through the process. In this case, you’ll need to be sure that the software company has all the applicable laws covered, as required for your state. You also want a program that lets you make updates later, if your situation changes.
However, if you engage the assistance of an experienced estate planning attorney, you’ll have the opportunity to have an expert help you think through the details. This result will be a well-drafted comprehensive estate plan. Yes, it will cost a bit more, but for many situations—like those with blended families, complex investments, or property in several states—it’s worth it.
Remember that the probate laws can vary widely from state to state. For example, the basic form requirements may allow a handwritten will in some states, but in other states the will must be typewritten. Some states require only two witnesses, and others require that the will be witnessed, notarized and typed.
If you have a larger estate or heirs with medical conditions, it may be wise to work with an attorney who can counsel you on the best solutions for your situation. For example, if you have a child with special needs receiving government benefits, you should have an attorney create a trust so their inheritance doesn’t negatively impact their benefits.
You should also use an attorney if you want to reduce your exposure to probate fees. Some people transfer their assets into a revocable living trust, so they are not subject to probate fees. An online service can’t give you this type of attention or personalized service.
If you have a complex situation, you may end up paying less by using an attorney. An experienced estate planning attorney has helped numerous families. He or she can offer insight into setting up guardians for minor children or appointing an individual to be in charge of the distribution of the estate. There are frequently estate and gift tax considerations about which the average person doesn’t know or monitor.
Reference: U.S. News & World Report (January 9, 2019) “Should You Make a Free Will Online?”
People who work for companies have access to perks like 401(k) plans, with automatic deductions that let them put retirement savings on autopilot. However, when you work for yourself, it’s all up to you, says Zing! in the aptly-titled article “Saving for Retirement When You’re Self-Employed? It Takes Planning and Commitment.” If you have the discipline and self-motivation to run a business, you should be able to apply those skills to your retirement.
Here are some tips for self-employed people who are concerned with building their retirement savings.
Embrace a budget. One of the biggest challenges is income that fluctuates. It’s hard to save when one month has you earning $10,000 and $3,000 the next month. You’ll need to create a budget and stick with it, including budgeting a percentage of your income for retirement. While you’re creating a budget, set goals for short- and long-term objectives to keep your budgeting focused.
A budget should include necessary expenses for each month, including mortgage or rent, car loans and credit card payments. Include groceries, transportation, and health care costs. Some self-employed people pay for some items like transportation or entertainment out of their business accounts. If you do that, just work with one budget, so you can measure spending. There is no need to split things out for yourself. You should then look at discretionary items like vacations, entertainment, gym memberships, clothing and things that are not basic necessities.
Now see what’s left at the end of the month. If there’s no regular stream of money going into retirement savings because there’s not enough after spending, you may need to make some changes.
Create an item in your expense budget for retirement savings. Make it automatic. Set a fixed amount of your income, by dollar amount or percentage of monthly income, and put it away every month for your retirement. This takes discipline at first and then becomes a habit. Once you see how the account grows, you’ll be more inclined to continue.
Talk with your accountant about the best savings vehicle for you. Some self-employed individuals use a “solo” 401(k) account, known as a SEP or Self-Employed 401(k). Designed for employers who have no employees other than themselves (or their spouses), it offers the same benefits as traditional 401(k)s. In 2019, you can contribute up to $19,000 when contributing as an employee, or up to $24,500 if you are 50 and older. As an employer, you can contribute up to 25% of your compensation – not counting catch-up contributions for those 50 and older, you can go as high as $55,000 in 2019.
Another factor if you are self-employed is your estate plan. Entrepreneurs are often so busy working on their business, that they forget about the legal side of their personal lives. You need a will, power of attorney, health care power of attorney and, depending on your business and life situation, a succession plan.
Reference: Zing! (Jan. 7, 2019) “Saving for Retirement When You’re Self-Employed? It Takes Planning and Commitment”
There are some individuals who just aren’t interested in handing down their assets to the next generation when they die. Perhaps their children are so successful, they don’t need an inheritance. Or, according to the article “Giving your money away when you die: 10 questions to ask” from MarketWatch, they may be more interested in the kind of impact they can have on the lives of others.
If you haven’t thought about charitable giving or estate planning, these 10 questions should prompt some thought and discussion with family members:
Should you give money away now? Don’t give away money or assets you’ll need to pay your living expenses, unless you have what you need for retirement and any bumps that may come up along the way. There are no limits to the gifts you can make to a charity.
Do you have the right beneficiaries listed on retirement accounts and life insurance policies? If you want these assets to go to the right person or place, make sure the beneficiary names are correct. Note that there are rules, usually from the financial institution, about who can be a beneficiary—some require it be a person and do not permit the beneficiary to be an organization.
Who do you want making end-of-life decisions, and how much intervention do you want to prolong your life? A health care power of attorney and living will are used to express these wishes. Without these documents, your family may not know what you want. Healthcare providers won’t know and will have to make decisions based on law, and not your wishes.
Do you have a will? Many Americans do not, and it creates stress, adds costs and creates real problems for their family members. Make an appointment with an estate planning attorney to put your wishes into a will.
Are you worried about federal estate taxes? Unless you are in the 1%, your chances of having to pay federal taxes are slim to none. However, if your will was created to address federal estate taxes from back in the days when it was a problem, you may have a strategy that no longer works. This is another reason to meet with your estate planning attorney.
Does your state have estate or inheritance taxes? This is more likely to be where your heirs need to come up with the money to pay taxes on your estate. A local estate planning attorney will be able to help you make a plan, so that your heirs will have the resources to pay these costs.
Should you keep your Roth IRA for an heir? Leaving a Roth IRA for an heir, could be a generous bequest. You may also want to encourage your heirs to start and fund Roth IRAs of their own, if they have earned income. Even small sums, over time, can grow to significant wealth.
Are you giving money to reputable charities? Make sure the organizations you are supporting, while you are alive or through your will, are using resources correctly. Good online sources include GuideStar.org or CharityNavigator.org.
Could you save more on taxes? Donating appreciated assets might help lower your taxes. Donating part or all your annual Required Minimum Distributions (RMDs) can do the same, as long as you are over 70½ years old.
Does your family know what your wishes are? To avoid any turmoil when you pass, talk with family members about what you want to happen when you are gone. Make sure they know where your estate planning documents are and what you want in the way of end-of-life care. Having a conversation about your legacy and what your hopes and dreams are for family members, can be eye-opening for the younger members of the family and give you some deep satisfaction.
Reference: MarketWatch (Oct. 30, 2018) “Giving your money away when you die: 10 questions to ask”
What if the father died first, then the mother? They both wrote identical wills and named the youngest child as executor. The middle child was named as the alternate. The will states that if the first executor can’t or won’t carry out the duties of the will, then the alternate executor takes over. It also states that within six months after the mother’s death, the home should be sold, and the proceeds divided evenly between all three siblings.
Time passes, and now it’s been now a year after her death. The oldest child is occupying the house—but he can’t qualify for a mortgage or buy the other two kids out of their shares.
Is the alternate executor permitted to just assume the executor duties and sell the home?
nj.com weighs in with a recent article, “Family fights over mom’s will when executor won’t sell the house. What’s next?” According to the article, being named in the will doesn’t give you the automatic right to serve as executor.
If an individual is named as successor executor in the will, there must be two steps taken, before he can assume the administration of the estate.
In this situation, the youngest brother, as the current executor, must either resign or be removed.
The easiest, quickest and least costly option is for him to voluntarily step aside. However, he obviously has to agree to it.
The second option is to go to court and ask the Chancery Court judge to remove him.
To be successful in removing the executor, a person must show the Chancery Court judge that the executor is refusing to take the necessary action, as directed by the mother’s will. If the judge is convinced, she can remove the youngest brother by court order.
The middle child would then need to be appointed by the judge as the new executor.
Typically, when a person is named as the alternate, it isn’t a problem. It’s merely an administrative process. The middle child would have to go to the probate court and sign the required paperwork.
Reference: nj.com (December 27, 2018) “Family fights over mom’s will when executor won’t sell the house. What’s next?”