Essential Estate Planning
Why should you care?
Through estate planning you can act now to ensure that you control the fate of your family, yourself, and your assets in the possible event of your incapacity and the certain event of your death.
For example, the creation of a fairly basic trust could allow you to save your estate from falling into the hands of creditors, should an heir have an untimely fall into bankruptcy. Or, it could save your estate from being squandered rapidly and senselessly if an heir were to have impaired judgment do to a battle with addiction. Proper planning can give you the flexibility to address these potentially unforeseen issues if they arise at the time of your death. Without an estate plan in place, you surrender any flexibility and submit to the default laws of your state.
Do you want to:
- determine who will care for YOUR minor CHILDREN or dependents if the unthinkable were to happen and they were to be left without parents?
- have a say in how YOU are TREATED if you ever become incapacitated and do you want to appoint someone you trust to make critical decisions on your behalf?
- have a say in who receives all of YOUR hard earned ASSETS when you die and possibly how those assets are handled by those heirs after your passing?
- MINIMIZE how much of your estate goes to TAXES and attorneys’ FEES when you die?
- ensure the settlement of your estate remains PRIVATE?
You need to address these essential estate planning issues or they will all be decided for you by the courts through a costly and lengthy public process called probate.
Let's Start at the End
With estate planning it is essential that you start where you want to finish. Your financial estate can easily end up in the hands of unintended beneficiaries. Though you may want your assets to be passed to your children or charitable organization, some or all of it could find its way into the hands of their ex-spouses, creditors, or taxing authorities. The estate planning process provides a means to ensure that as much of your estate as possible ends up where you intend it to. You should start at the end by defining your ultimate goals and work backwards to formulate a plan to achieve them. There are many strategies that can be employed in estate planning from basic to extremely complex. It is each family’s unique situation that determines the legal and financial tools needed and level of complexity required. The most common and essential elements of an estate plan, including those non-financial elements that govern the care of your person and your children, will be the focus of this discussion.
Key Estate Planning Documents
- Advance Health Care Directive
- Durable Power of Attorney
- Living "Revocable" Trust
The main purpose of a Will is to provide instructions for the disposition of your property upon your death. If you die “intestate” (meaning: without a proper will in place), your property will be disbursed according to state law regardless of your wishes. In addition to specifying how to disburse your assets, your Will should name an executor who will manage and settle your estate. If no executor is named, one will be appointed by the court. For those with minor children, the most important estate planning element of all is the appointment of a guardian for your children should they be left without parents. You can also name a legal guardian for any dependents with special needs. You can appoint a guardian for your minor children or dependents and their assets, or you can separate the roles of personal and financial guardianship if the same individual would not be well suited for both. You should seek the consent of any appointed guardians in advance to ensure that such guardianship is not refused upon your death, which would cause the fate of your dependents to be placed back in the hands of the court. The probate court has the final approval of all provisions of a Will, including the choice of guardian(s). However, a Will is a binding legal document and the courts are very reluctant to overturn any provisions within it. Therefore, it is crucial that your Will be well articulated and properly executed under your state’s law. Additionally, it is essential to keep your Will up to date with life changes and compliant with current state law. A Will may be replaced easily, at any time, prior to death or incapacity, by executing a new or revised version. It is worthwhile noting that a Will does become a matter of public record when filed with the court after your death.
A Pour-Over Will is a simple will that is used in conjunction with a Living Trust, discussed later. This Will simply transfers, “pours over,” into the trust any assets remaining outside of the trust upon your death. It is a catch-all for any items not previously titled in the name of the trust. The specifics of beneficiaries and distributions would be left to the provisions of the trust. This Will would also include any guardianship designations that may be required.
You may also choose to draft an accompanying Letter of Instruction. A Letter of Instruction (also called a Testamentary Letter or Side Letter) is an informal, non-legal document that generally accompanies your Will, but should not be stored with it or filed with the courts. This document remains private unlike your Will and serves a more personal, rather than financial, purpose. It can be used to specify your burial wishes, help the executor locate important documents, assets, or people, suggest how you might like your heirs to handle their inherited assets, explain any decisions made in your Will, or provide thoughtful guidance to those who would be caring for your dependents. This document would be most helpful when left in the hands of your family members and/or your executor. A letter of instruction is a non-binding document and its contents are merely suggestions or directions that may be ignored.
Today there are an astonishing number of people without even a basic Will in place. This is in fact irresponsible, especially if you have minor children. If you are in this group, you are urged to immediately draft and execute a basic Will, in even the crudest format, or go to an online legal service and create formal will compliant with your state’s laws. There are many options to get this done for less than $100. This would serve as a stopgap measure until you can consult with an attorney and review your complete estate planning needs.
Advance Health Care Directive
An Advance Health Care Directive (also called an Advance Directive or a Living Will) is a document that lets you specify how you would, and would not, like to be treated medically in the event of your incapacity or inability to express your wishes yourself. These typically address the types of treatments and procedures that artificially prolong life. If you do not have advance medical directives, medical professionals must prolong your life using artificial means, if necessary. With today’s technology, physicians can sustain patients for days, weeks, months or even years. An alternative to an Advance Directive is a Durable Power of Attorney for Health Care. This empowers another person, appointed by you, to make all health care decisions on your behalf. Select an appointee that you would trust with your life, literally, and make them well aware of your intentions. Another commonly used document, when the circumstances warrant, is known as a Do Not Resuscitate order (DNR). A DNR specifies that a medical professional should not perform CPR if you go into cardiac arrest. The various legal options to predetermine certain critical healthcare decisions differ from state to state, so it is important that you seek counsel to determine which is the most appropriate and effective method to ensure that your wishes are honored and your best interests are represented.
Durable Power of Attorney
A Durable Power of Attorney (DPOA) helps protect your property in the event you become physically or mentally incompetent to handle financial matters. When instituting a DPOA, you are authorizing someone else to act on your behalf to do things such as pay everyday expenses, file taxes, watch over your investments, and other essential financial matters. If no one is designated to look over your financial affairs, you run the risk of wasted benefits, potential loss or even abuse of property. Invoking a DPOA is an area that is fraught with potential conflict. It is easy to determine when one has been physically incapacitated and is unable to perform certain functions for themselves, but not so easy to determine when mental capacity has diminished to the point where the power of attorney can or should be invoked. It is common for this decision to be difficult and possibly result in confrontation. Authority to make one’s own decisions is not easily given up, even when properly planned for as a potential contingency using a DPOA. It is important that all parties remain cognizant of the sensitivity of the situation. It may be advisable for responsible parties to consult with a specialized psychologist when preparing to discuss the invoking of power with a mentally incapacitated individual. It is obviously very important to select someone you are extremely comfortable with and trust explicitly to take on this responsibility for you. And, it is important that they take on the responsibility willingly and are well aware of your financial situation, personal needs and intentions.
Living "Revocable" Trust
A Living Trust (also known as a Revocable Trust or an Inter Vivos Trust) is a separate legal entity meant to function while you’re alive. Once the entity is formed you generally transfer the title of all assets to the name of the trust, excluding retirement accounts. During your lifetime, you maintain control over the property placed in the trust as well as the ability to change trust terms, transfer property in and out of the trust or to terminate the trust altogether. It can be amended or restated in its entirety.
The primary parties to a trust are:
- the Settlor(s) or Grantor(s) or Trustor(s): person(s) who created and funded the trust
- the Trustee(s): person(s) who have authority to manage the trust
- the Beneficiary(ies): person(s) for whom the trust is managed to benefit
Initially, all three parties are usually the same person(s). For example, when a husband and wife form a trust, fund it, and manage it for their own benefit while they are alive, they serve in all three capacities. If they were to become incapacitated, the successor trustee(s) would assume control and continue to manage the trust for the benefit of the couple while they are alive. When they die, the successor trustee(s) would assume control, if they hadn’t already, and manage the trust for the benefit of the subsequent beneficiaries. This could be as simple as settling the financial affairs of the deceased couple and distributing the remaining property to the beneficiaries, similar to settlement under a Will except without the courts. Or, it could mean that a new Irrevocable Trust is formed to maintain control of the assets for later or gradual distribution according to detailed instructions.
Benefits of a trust:
- Avoidance of probate time and costs
- Tax efficiency
- Flexibility of distributions
- Protection from beneficiaries’ creditors or themselves
The primary function of a living trust is to avoid probate when settling your estate. Depending on your situation and state’s laws, the probate process may vary in complexity, length of time, and cost. Transferring property through a living trust not only avoids the probate process, but ensures privacy of the decedent and his/her family’s financial affairs. Property that passes through probate will become public record. Generally, property titled in the name of a trust does not.
Tax efficiency is the focus of most of the more complex types of trusts used by those with larger estates. A basic living trust does have tax efficiency imbedded as well. First, it sets out to maximize the benefit of estate tax exemptions by placing the first-to-die spouse’s assets in a new irrevocable trust thereby utilizing their exemption and passing the assets to the next generation/beneficiaries while maintaining them in a trust for the surviving spouse’s benefit for the duration of his/her life. With the new “portability” of estate tax exemptions, the second-to-die spouse can now utilize both spouses’ exemptions together if properly documented upon the death of the first. This places less importance on that particular feature of a trust, but many existing trusts have not been amended to adjust for the change in law. When a settlor dies an outdated strategy may be irrevocably deployed.
Another benefit of the trust structure is that it can leave the successor trustee with the authority to determine which particular assets are distributed to which beneficiary based on the circumstances at that time. For example, they may determine it more advantageous to transfer an IRA to the charitable beneficiary and a cash balance to a child looking to buy a home. The charity wouldn’t have to pay taxes on the IRA distribution under current law, making the transfer much more efficient than if it was passed to the child.
The provisions of the trust could also allow the trustee to determine if a beneficiary should receive their distribution at all. For example, if one of the beneficiaries was going through bankruptcy the inheritance could be immediately claimed by creditors. If this were the case, a properly drafted trust would allow the trustee to determine that the beneficiary should not receive a distribution at this time. The same could apply to a child with a substance abuse problem that would likely squander the inheritance without providing any durable benefit to themselves. These are situations that are not typically known at the time of drafting. It is the trust structure that allows the flexibility to adapt to the current situation and better serve the interests of all beneficiaries.
As illustrated, it is extremely important to keep your trust documents up to date with current law and to make sure it reflects your current intentions.
The laws governing all of these estate planning documents vary from state to state, but there is a significant level of standardization that has been adopted by most states. It is important to find a specialized estate planning attorney, licensed in your state, to help you through this process and draft these documents tailored to your individual needs. Working backwards from the desired end, there are tools (documents) that they can use to help ensure that your wishes for you and your family are fulfilled in an efficient manner. These are things that you do not want to leave to chance or in the hands of the courts. A typical estate planning package, including all of the documents discussed here, would cost roughly $2,000 to $3,000. This will vary depending on your location and could be found for much less (be careful, you get what you pay for) and much more based on additional levels of complexity. In California, probate for a $500,000 estate will cost over $10,000. That savings alone is worth the price of the trust. Do not wait until it is too late for you, your children, or your assets. Take the steps to get a plan in place. The process is always much easier than the typical client anticipates.
This paper is not intended to provide any legal advice. It is intended to encourage you to consult with a specialized estate planning attorney to address any of these issues which are applicable to you, if you have not already done so.