Making plans for your assets and wealth after death isn’t anyone’s definition of a good time. Yet the alternative—having your personal property distributed through probate court—is a far worse logistical and emotional nightmare, especially if there’s a house involved.
Americans nevertheless are resistant to getting their affairs in order. A survey by Caring.com indicates less than half—42 percent—of adults in the U.S. have prepared estate planning documents such as a will or living trust. Moreover, according to research by the University of Pennsylvania, only 29.3 percent of Americans have a health care directive specifying their end-of-life-care wishes.
An artfully crafted estate plan that reflects your legacy is not just for the wealthy and famous but anyone who could foreseeably go through the probate process, according to estate planning expert Robin Boren-Coleman Sexton, attorney at law at Sexton Estate Planning in Irvine, California.
“Pretty much everyone needs a living trust to avoid probate after death,” echoed Sacramento-based probate attorney John Palley, who has been awarded Martindale-Hubbell’s prestigious “AV” peer review rating and who up until last year did estate planning.
“Every state’s different, but in California, for example, even a very modest family—if they own real estate—their family will save significantly after death if they had a living trust in place.”
1. Whatever you do, make clear plans for your house.
Of all the things you want to pass on to your heirs, your home is likely the largest and most important.
Know that if you don’t put your home in your will, set up a living trust, or include the words “transfer on death” or “joint right of survivorship” in your deed, be aware that your kids (or whoever you want to pass the house on to) won’t even be able to clean your home until the court appoints an executor.
2. Understand the downsides of probate.
Probate court serves to establish the validity of a will and process the settling of debts and distribution of assets, investments, business interests and property for the deceased. Probate varies from state to state, but every state has probate and experts agree helping your family avoid as many costs and delays of this process as possible is the best way to go.
First of all, probate is costly and will immediately devalue an estate. Boren-Coleman Sexton estimates that depending on the state, probate will cost roughly 5 percent of the decedent’s estate—on a $1 million estate, that’s roughly $50,000 in expenses.
Secondly, probate can take years to conclude depending on familial circumstances.
Finally, what happens in probate is a public matter. That means anyone off the street can trifle through documentation outlining all of your assets and financials, including outstanding debts and the names of those who will inherit your assets.
A will-based estate plan will be filed with the probate court; however, your estate plan can be made private with the creation of a revocable living trust (there may be other privacy options depending on your state), which allows you to appoint a trustee to handle your debts and assets should you become incapacitated or die. A professional can help guide you toward the best avenue based on your wishes.
3. Plan for contingencies.
They say in life you should always have a backup plan. The same is true after you die.
Both estate experts we spoke with are proponents of multiple contingencies in estate documents—which might mean planning for unlikely and unimaginable scenarios, such as a child trustee dying before the author of the estate plan. It’s always a good idea to name several backup trustees and, as a final resort, a professional or financial institution.
“Why not put it in writing?” Palley has posited to clients. “Why not be specific? It doesn’t cost any extra to add another sentence or two. So let’s put it down … Life changes.”
Boren-Coleman Sexton offered a couple of other examples.
“How about creating an education trust for beneficiaries that are incredibly young to give them that type of opportunity?” she suggested. “Or how about creating plans if an individual somehow becomes addicted to some type of substance—alcohol, narcotics—let’s create a plan for them. It may not be happening now, but it could happen down the road.”
Palley would often recommend the use of a discretionary trust, which allows you to assign a trustee with the discretion to distribute funds up until beneficiaries reach a certain age.
“Now, of course, the selection of the trustee is crucial,” said Palley, who would suggest choosing a more experienced, worldly adult whom you trust to put in charge.
4. Don’t forget about personal items that don’t hold objective value.
Whether it be a family heirloom, a collection, a book of photographs or journal filled with memories, we all have items that are significant to us but wouldn’t necessarily look important to someone else. Your estate plan gives you the opportunity to not only think about the big stuff but also to put in writing all the little things that you’d like carried out in a certain way.
In Boren-Coleman Sexton’s experience, clients often neglect or forget about these items that hold a lot of personal meaning yet aren’t high in monetary value.
5. Know that palliative care can get really specific.
The Center to Advance Palliative Care defines palliative care as “specialized medical care for people with serious illness … focused on providing relief from symptoms and stress of a serious illness.”
Palliative care is not the absence of medical treatment but the goal of creating sustained quality of life—the treatment of pain, nausea and other symptoms in the wake of a major health event.
“Palliative care is basically making them comfortable, keeping them in their homes and all of these things can be prescribed specifically in an advanced healthcare directive that’s crafted to them as an individual,” said Boren-Coleman Sexton, who described palliative care as being part of a modern era of estate planning. “You can get incredibly specific when it comes to this. ‘If I’m not eating, then I want to have some kind of nutrition services; I want to make sure that I’m given things such as ice chips.’”
6. Consolidate your accounts and leave your family a roadmap map to access them.
Now that we store everything about our lives online—including our credit cards, paychecks, insurance policies, retirement savings, and bills—it can be particularly difficult for a family to navigate and settle all of a person’s financial accounts after they die.
“In the old days, when someone died, the family goes to the house,” said Palley. “They go through your desk drawer and they find all your bank statements. That obviously is not the case anymore.”
Two things can make this easier. The first is consolidating accounts over the course of your lifetime (ditch that credit union card you haven’t used in decades, Palley recommends). The less accounts there are, the easier it will be on the family.
The second is to list in an estate plan all of your online accounts to create a roadmap. The list doesn’t have to include dollar value of the accounts, and if you’re not comfortable putting all your password information in one place, consider leaving the credentials to your email account as a catch-all, as passwords on most accounts can be reset via email.
7. Consider the tax implications of your estate plan.
The new federal tax code raised the cap on the amount of money that can be gifted as part of an estate untaxed from $5.5 million to $11 million.
Very few individuals are going to exceed that level of wealth, but for those who do, proper estate planning can be pretty significant. With a 40 percent estate tax, you can figure every million dollars above $11 milion you’re losing $400,000 in taxes, Palley explained.
Additionally, some states still have their own estate tax that caps the exemption at much lower number. In Oregon, the exemption is $1 million.
8. Verify that all of your accounts have beneficiaries listed.
As you set up accounts throughout your lifetime such as an IRA, 401k, or life insurance policy, you are often prompted to name a beneficiary. But that doesn’t necessarily mean you’re squared away for the long haul.
Over time, it’s important to verify that each and every one of your accounts has a beneficiary listed. It might sound crazy, but Palley says he sees it happen all the time: Events such as companies merging, changing computer systems or going from paper to electronic records can result in data mixups in which a family knows there was a beneficiary listed, but when it comes time to sort it out after an individual’s death, there’s no record of the beneficiary to be found.
As such, it never hurts to ensure every one of your assets has a beneficiary listed in writing at the time you craft your estate plan as well as after any changes that the custodian of that account notifies you about.
9. Revisit your estate plan after any major event affecting your assets.
It’s also a good idea to check on aspects of your estate plan such as your living trust after a personal life event that could impact the status of your assets.
Here’s an example: Palley said it’s not as common anymore but it still happens: Say a house is owned by a living trust and a husband and wife want to do a refinance. Some banks (not all) would require the property be taken out of the living trust in order to do the refinance, and then, by mistake, the property may never get put back into the trust.
If one or both of the spouses die, you’re looking at going through some kind of probate process to clear title.
10. Getting the most thorough estate plan that best reflects your needs usually means working with a professional.
There are online services that can help you complete what’s known as a “fill in the blank” estate plan, but in the same way many people still use real estate agents to facilitate their property transactions, and tax professionals to stay sane during tax season, an experienced estate attorney can help you navigate the complexities of end-of-life planning, particularly if you are sorting through a number of properties, business interests and investment vehicles.
“The reality is an experienced attorney is able to combine the legal information with—how would I say—the expression on your face,” Palley said, speaking to his career before he switched exclusively to probate. “When we’re talking about who should be the trustee, I would say, ‘Do you trust your kid to be the trustee?’
“Well, I could see a hesitation in their face or their voice, and if i saw that hesitation, then i might say, ‘Are you sure you trust them? Because I felt like you were a little slow to answer that. Maybe we should think about someone else being the trustee.’”
11. Everyone can plan wisely for their estate.
“You don’t have to have multimillion dollar estate to have an incredible estate plan that reflects who you are,” said Boren-Coleman Sexton. “Do not think that you do not deserve a thorough estate plan. Go into this with every intention of having something that represents your legacy and something that you will be proud of.”
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