What is Estate Planning?
Estate Planning is the wise use of available options to accomplish your goals for distributing your assets after death.
What is an Estate?
It is everything you own. That includes:
:: Your home
:: Your real estate
:: Your bank accounts
:: Your investments
:: Your retirement
:: Your IRA’s
:: Your insurance
:: Your collectibles
:: Your personal belongings
When you start adding it up and include death benefits from insurance polices, you may have a lot more than you think.
Planning will allow for your estate planning wishes to be heard, otherwise, the state in which you live has default procedures for distributing an estate.
As you age, your plan should:
:: Include long-term care options
:: Decide medical issues
:: Consider incapacity
After death, your plan should:
:: Control who receives your assets
:: Pay the least possible legal fees and taxes
:: Provide needed liquidity
If your assets are distributed according to the state’s plan by default, it will probably be more costly, confusing, and burdensome to your heirs.
In the event of simultaneous or early death, minor children can become wards of the court. The best time to plan your estate is now, while you can, before you need it.
What are the Basic Plans?
There are six basic options to choose from when planning your estate:
:: Will (Last Will and Testament)
:: Nothing (Intestate Succession)
:: Joint Ownership
:: Make Gifts (Give Away Assets)
:: Beneficiary Transfers
:: Living Trust
Plan number one: Will
A Will’s basic purposes are to:
:: Name someone to handle your final affairs. (Executor)
:: Name who will receive your assets after you die. (Heirs)
Supreme Court Chief Justice Warren Burger’s Will worked okay. His heirs received 75% of his $1,800,000 estate.
LAST WILL AND TESTAMENT OF WARREN E. BURGER
I hereby make and declare the following to be my last will and testament.
1. My executors will first pay all claims against my estate;
2. The remainder of my estate will be distributed as follows: one-third to my daughter, Margaret Elizabeth Burger Rose and two-thirds to my son, Wade A. Burger;
3. I designate and appoint as executors of this will, Wade A. Burger and J. Michael Luttig.
IN WITNESS WHEREOF, I have hereunto set my hand to this my Last Will and Testament this 9th day of June 1994.
(Signed by Warren E. Burger)
The legal processes that a Will must follow often highlight dissatisfaction. A carefully crafted Will as the primary estate planning tool addresses:
:: Probate (Laws of Descent and Distribution)
:: Community Property Laws (Community Property states Washington, Idaho, Nevada, Arizona, Texas, Louisiana and Alaska)
:: Jointly owned assets
:: Assets with beneficiary designations
:: Long-Term Care
:: Minor Children
Resources for Will creation include the website: LegalZoom.com and the software: WillMaker Plus
Probate is a legal process that takes place in court:
:: The Will is validated
:: Debts are paid
:: Assets are distributed according to the Will
:: Titles are changed
Probate can be undesirable for some:
:: Probate takes time, sometimes two years
:: The estate may face some loss of control as assets are sorted out
:: Probate can be overly expensive, typically:
Gross estate: $1,000,000 x 6% = $60,000 fee
:: Probate is a public process
:: The process is often more easily contested
:: Each state where assets are owned requires a court proceeding
Community Property Laws
Community Property Laws apply to married couples who live or have lived in Washington, Idaho, Nevada, Arizona, Texas, Louisiana, California, New Mexico and Wisconsin. Alaska also has Community Property Laws that will take effect if spouses sign a Community Property Agreement. Often Community Property Laws prompt couples to make a Community Property Agreement an important part of the their estate planning.
The general Community Property rule is that spouses together own all property that is acquired during the years of their marriage. Except for property a spouse receives by gift or inheritance. Each spouse owns a half-interest in the “community property” acquired during marriage. You are generally free to leave your separate property and your half of the community property to anyone you choose.
Jointly Owned Assets
Your Will only controls assets that are solely in your name. The most common forms of ownership are:
:: Deeded (Real Estate)
:: Titled (Automobiles, Motor Homes, Trailers, Motorcycles)
:: Registered (Stock, Bonds, Securities, Accounts)
:: Possession (Coin Collections, China, Silver, Antiques, Art, Clothes)
Assets With Beneficiary Designations
Your Will does not control assets where you have named beneficiaries, such as:
:: Retirement Benefits
:: Life Insurance Policies
An excellent resource on the internet:
A Will is no help if you become incapacitated. It only goes into effect after you die.
Remember Groucho Marx? He had a Will. But he didn’t plan for incapacity. The end of his life became a public circus. The Court declared him incompetent, and his family members battled for control over his care and his money. He lost his privacy in a costly court battle. If he had planned in advance, he would have not lost control over the decisions about who should manage his finances and determine his medical treatment, how and for whom his money should be used during his disability, and how he should be cared for if disabled.
Alzheimer’s disease, stroke, heart attack can trigger the need for a court to appoint someone to sign and conduct business for you, even if you have a will or trust! A carefully crafted Durable (General) Power of Attorney can allow someone to handle your financial affairs if you become incapacitated.
Also pick up Advance Directive forms from your healthcare provider. Complete what are commonly called a Medical Power of Attorney (Healthcare representative) and a Living Will. The term “Healthcare Proxy” is often used.
If you have minor children or grandchildren your simple Will may not give you the control you want. The court, not the guardian named, may control inheritance if the Will has not been constructed carefully.
Plan number two: No Will
If you have no estate plan, not even a will, when you die:
:: Your assets will be distributed according to your state’s probate laws
:: Your minor children will become wards of the state
If you have no estate plan, at incapacity, you may lose control.
Plan number three: Joint Ownership
There are a number of estate planning arrangements that husbands and wives can make, as well as agreements between unrelated parties. One of the most common is Joint Tenancy With Right of Survivorship. Some advantages are:
:: No probate (for first joint owner)
:: Both parties are 100% owners of assets
However, there are disadvantages:
:: Probate is really just postponed
:: If you die first, you lose control of your assets and could unintentionally disinherit your own family
:: If your co-owner becomes incapacitated, the court may be your new co-owner
:: Removing a co-owner’s name from titles or deeds, when they don’t agree with you, can be difficult
:: Property is exposed to co-owner’s debt
Any JTWROS agreement should be carefully considered and legal counsel sought.
Plan number four: Giving Away Assets
Giving gifts is not only good estate planning, it fits well within the Christian life.
:: There is enjoyment in seeing your gifts used now
:: Gifts for tuition and medical bills can be a very good strategy
:: Gifts to charity
Parents may give their assets to their children. If you die or become incapacitated this is often thought to make things easier. If this is your estate plan, you should consider: :: Will your children give back assets you may need later?
:: Your children miss using Stepped-Up Basis 10,000 shares of Microsoft stock Basis Gain Capital Gains Tax Lifetime Gifts (Your Basis) $ 290,000 – 100,000 $ 190,000 $ 28,500 at 15%
Additional resource: Splitting Heirs by Ron Blue A Christian exposé on estate planning and giving gifts
Plan number five: Beneficiary Transfers
You may transfer the bulk of your assets through beneficiary designations. Your bank accounts, CDs, stocks, bonds, insurance policies, IRAs, and retirement plans may all let you name beneficiaries to receive the asset when you die.
:: Pay on Death (POD) designations on individual and joint accounts
:: Name a beneficiary for retirement accounts
:: Name a beneficiary for stocks and bonds (TOD)
:: Name a beneficiary for your vehicles
Probate is avoided, but care must be taken so that the courts don’t get involved if the beneficiary is:
:: Dies before you or at the same time
:: A minor
Uniform Transfer to Minors Act (UTMA) and the naming of a Custodian are important issues.
Plan number six: Revocable Living Trust
The Revocable Living Trust, which has been around a long time, has become very popular in recent years. It is being used by people of all ages, marital status, or wealth because of the following advantages:
:: It avoids Probate and Probate fees
:: It accomplishes what a Will accomplishes
:: You can name alternate beneficiaries
:: You can amend or revoke at any time
:: It is more difficult to attack in court than a will
:: It is legally alive the moment it is signed
The Three Parts of a Revocable Living Trust
:: The creators of the Trust
:: Determines what assets the Trust will own
:: Names the Trustee(s) and Successor Trustee(s)
:: Names who will get what, when, and in what form when assets are finally distributed
:: The assets owned by the Trust
:: Control over the assets of the Trust
:: Can be the same people as the Trustor(s)
The amount of control is determined by the Trustors. In cases where the Trustors and Trustees are joint husband and wife, no controls are usually set. Whatever the law allows, they can do. The law allows Trustees the same latitude of use and control as an owner unless restricted by controls set within the trust.
The Successor Trustee
The Successor Trustee(s) is appointed by the Trustor to secede the Trustree and take over control of the Trust’s assets according to the instructions contained in the trust.
:: These instructions usually spell out the duties and limits of control placed upon the Successor Trustee
:: Under Trust Law, the Successor Trustee is accountable to fulfill those duties and stay within specified limits of control to the best of their abilities and judgment
:: The Successor Trustee is responsible for distributing the Trust’s assets according to the requirements of the Law and the instructions contained in the Trust
:: Advertise for claims against the estate and pay the debts of the deceased
:: File an Income Tax Return for the deceased within nine months of their death
:: Distribute the remaining assets according to the instructions contained in the Trust
:: Upon removal of all assets, the Trust is considered legally dissolved
:: There are rules that require provision for termination (rules against perpetuities)
Setting up a Revocable Living Trust
There are seven steps to setting up a Revocable Living Trust:
:: List assets to be included
:: Develop a distribution plan
:: Choose Trustee
:: Choose Successor Trustee
:: Write the Trust
:: Transfer assets to the Trust
:: Manage the Trust
Step one: List the Assets to be Included
You will gather documents to take to your attorney:
:: Deeds for real estate
:: Titles for automobiles and other vehicles
:: Registered Certificates for stocks, bonds, and securities
:: Latest account statements
:: Lists and appraisals of other possessions
Step two: Develop a Distribution Plan
Have a plan for the final distribution of each asset:
:: Who gets what
:: Who gets it when
:: In what form is each asset distributed
Step three: Choose a Trustee(s)
If the Trust is being set up jointly by husband and wife, you will most likely appoint yourselves as Joint Trustees. Otherwise:
:: Have the person’s permission
:: Consider a corporate trustee if investment expertise is important
Step four: Choose a Successor Trustee(s)
Most couples appoint one or two of their children to act as Successor Trustee
:: The person does not have to be an attorney, accountant, or financial planner
:: Most adult children can handle the details of distributing the assets of an average estate
:: In essence, all that is required is to keep peace in the family while transferring deeds, titles, and registered certificates from the trust to the ones designated to receive the assets
:: Provision can be made for a temporary Successor Trustee appointment
:: A Guardian may be chosen for your minor children in the event both of you die before they come of age
Step five: Write the Trust
:: Use a lawyer
:: Use software
Step six: Transfer Assets
Assets which are going to be owned by the Trust must be legally transferred to the Trust:
:: Deeds, Titles, and Registered Certificates must be transferred individually
:: Your Attorney may prefer to handle some transfers to assure accuracy
:: Unregistered personal belongings are often transferred by a General Provision built into the body of the Trust
Step seven: Manage the Trust
:: New Deeds, Titles, and Registered Certificates are now registered in the name of the Trust
:: A Pour Over Will is often produced as part of a Trust to catch personally owned assets and pass them to the Trust after probate. Some states require a will for guardianship
:: Review your Trust and Estate Plan as a whole after any major acquisition or event in your life
Thank you. Our hope is that the information presented here is helpful. It is good to pause and reflect upon your future and the planning that can help those you love.
If you have questions Carl Sandeen is available to help you sort through options discussed in these materials. Making Cannon Beach Conference Center a part of your estate plan is an option we will be glad to discuss at your request.