Downs Law Firm, P.C.
Downs Law Firm, P.C.
What would happen with your kids, should something happen to you? It’s a question that most parents don’t like to think about.
Probate is what’s left over An alternative way to avoid the Probate process, or the frying pan, is by contract. Retirement plans, life insurances and investment accounts can have transfer-on-death (TOD) or Paid-on-death (POD) instructions. These are also called beneficiary designations. The same is true for US Savings Bonds, Certificates of Deposit, and most other financial instruments. I was recently meeting with a woman whose husband had died. He had a will that gave everything to her. Unfortunately for her, all of his retirement plans were still payable on death to his first wife, who ultimately received the money. Her husband may have been under the impression that the will would redirect the accounts. That is a common mistake. Companies administering the contracts don’t care what your Last Will and Testament says: they are bound by the contract terms only. Therefore, a significant consideration in creating an estate plan is to make sure that the beneficiary designations are coordinated correctly. This going to be especially true with retirement plans. One key aspect to providing that someone inherit your IRAs and 401 K plan is providing how long they can “stretch” the withdrawal. This allows the plan to continue to grow tax deferred and spreads you the income taxes on withdrawal. How the beneficiary designations are made plays a significant part of this. We often see people who have no beneficiary or no back up beneficiary on such a plan. This can cause significant accelerated income taxing of the account. How current are your beneficiaries? With a little effort you can check and update them. Years ago, I had a client who died at age 90. We discovered that his government life insurance had been left to his wife, who was already deceased. The contingent beneficiaries were his parents. That probably made sense when he signed the life insurance papers while his children were minors. One of the biggest difficulties in the case was proving that his parents were dead. Try locating a death certificate for someone who died in the 1940s. It can be difficult, even in our internet age. One final tip: if you have minor children and have created a trust for them in your will or a revocable trust, have that trust as a primary or contingent beneficiary. Many of my clients will name a trusted sibling instead. The problem is that if the sibling dies, their family may well end up with the money.
Probate is what’s left over I draw about ten frying pans a week on a legal pad. This is not due to my great artist ability. Last week I explained that Wills work through a process called Probate. When someone dies, property may be transferred by title, such as the transfer of a house to a spouse when the first spouse dies. It is easy and essentially automatic. If a person dies and the title doesn’t convey ownership, then a contract may do so instead. More about that next week. There are only three ways assets transfer at death: By Title, by Contract, or by Probate. If the title and contract don’t transfer ownership, then a probate estate does. If a decedent as a will, this is activated then: if not, then the law of the state of they lived in writes one for them. Since the dead person is not here to transfer title, that role is given to the Personal Representative. Once appointed, that person can sign contracts, deeds, tax returns, etc. All this is done with the oversight of the probate Court. Probate is not bad: it serves a necessary function. Many year ago, I was part of a bar association discussion years ago about probate and its avoidance. I was advocating the use of Revocable Living Trusts as reasonable alternatives to Court supervised transfers. I felt like a baby harp seal hunter at a PETA meeting. The outrage and venom directed at me for suggesting that Probate was to be avoided” were palpable. Most of the lawyers present, and the then Register of Wills, insisted as a strong refrain that “Probate is not that bad…” The only people I have heard insist that this is true are attorneys and Probate Court personnel. I pointed out the hypocrisy of this by position by asking “How many of you have your life insurance policies and/or retirement plans payable to their probate estates?” Of course, no one did so, because naming a beneficiary was simple and the probate Court could be avoided. If probate isn’t so bad, then why no? Maybe because of administrative fees, Court costs, Attorney fees, Personal Representative Commissions, which in Maryland can be 3.6% to 4%. Maybe because the court process can cause long delays before funds are available: from seven months to several years is not unusual. Finally Probate records are public, meaning that your neighbor can go to the Court, read your will, find out who is getting what, when they get it, and who is in control. For some of my clients, keeping this private is preferable. Is short, probate is time consuming, expensive and is completely public. The Court process provides supervision, which is some cases is badly needed. Most of my clients name people that they trust and don’t want supervised. To weigh out your options, its best to seek the advice of an estate planning attorney. Note: This is the Second of a Series of Five to be published
Estate problems can sometimes lead to a fractured family. We speak to many people who believe that if they die without a will, everything goes to the State. This is almost never the case. “Dying intestate” is the term used to describe the legal status of someone who has died without a will. The laws of your state law will then dictate what happens to your assets. Most of your tangible possessions will be distributed following probate. If your estate is complex, for example, and you own property in more than one state, the process will take a long time and the costs can be high. With a will, you can control who gets what, when they get it, and who is in control of the process. Without a will (or possibly a Revocable Living Trust), you have a plan, drafted by your legislature, but forfeit the right to decide these things. Some of your assets do not pass to heirs through a will. Jointly titled assets pass by title regardless of what your will might say. Other assets usually transfer at death by the contract that controls the asset, such as retirement accounts, life insurance policies and annuities. All accounts that have named beneficiaries go directly to the people who are named. If they predecease you, then the contingent beneficiary receives the asset. The companies do not care what your will instructs. Reconsidering your joint ownership decisions and beneficiary designations are important parts of reviewing your entire estate plan. If you name only your son as the beneficiary for your insurance policy, then later welcome a daughter into your family by birth or adoption, you’ll want to add her as a named beneficiary as well. Otherwise, when you die, only your son will receive the proceeds. Anytime a life event occurs—births, deaths, divorces, marriages—is the right time to review your beneficiary designations. You can make these changes when you are living. When you die, the designation is irrevocable. A will—and an estate plan that is updated regularly—can prevent surprises and ensure that your choices are honored. Family members can end up feeling mistreated by the distribution of an estate. However, a good estate plan can help prevent those hard feelings from developing, according to the Observer-Reporter in “Improper estate planning can lead to familial conflict.” Keeping that plan current can lessen the trauma of something happening by oversight instead of intention. Here’s a celebrity story that serves as a perfect example. A famous father made his third wife his executor and gave her total control over his business, despite the fact that his son was equally famous and the top executive in that business, as well as its public face. The son was baffled when he learned that the third wife now controlled the business, including the rights to his own name. When the father died, a long, expensive and unpleasant estate battle began. The son was Dale Earnhardt Jr. An estate planning attorney can advise you in creating