WILLS, TRUSTS & ESTATES
The Estate tax threshold is now more than five million dollars. For ninety nine percent of the population Estate tax is not an issue. Nonetheless, many issues need to be considered when working with clients to formulate a plan for disposition of their estates.
For a husband and wife with their children only (no other children) the couple must consider whether to leave everything to each other, whether to leave particular assets to individual children, whether to treat the children equally, whether to have contingent trusts for underage children, who to name as Executor, and whether the Executor should have the power to sell real estate among other issues.
Couples with children from prior marriages have more concerns. The most frequent question I get is this: “If I leave everything to my spouse, will he/she take care of my children or will my spouse leave everything to his/her children to the exclusion of my children”. This is a difficult scenario and has to be carefully considered.
Ensure Your Voice Is Heard
Another issue frequently encountered: many people have their property disposed of by beneficiary designation that passes to a beneficiary regardless of what the will says. For example, real estate can be owned with right of survivorship, bank accounts can be set up to go to the survivor, life insurance and retirement accounts ordinarily have beneficiary designations. It can be that many of the person’s assets are already disposed of in this method so there is little or nothing to pass by the will.
Revocable trusts are used frequently these days. Avoiding the probate process and privacy are two of the main reasons for having a revocable trust. You need to weigh the extra costs of a revocable trust and the re-titling your assets to the trust against what would be saved by avoiding the probate process. I will give you a realistic assessment of whether or not a revocable trust would be necessary or desirable in your case.
Having a Will or Trust Alone Is Not Enough
Usually when I talk with people about wills and trusts, we talk about powers of attorney and medical directives. Virtually all powers of attorney these days are durable (continue to be effective if the maker of the power of attorney becomes incompetent). This is one of the main reasons most people want a power of attorney, so that someone else can handle their business affairs if they are not able to do so themselves. When you give another person authority over your financial matters, there are serious considerations including what problems the person who is designated your power of attorney can cause you.
Most people need a medical directive, which is a combination of a living will and designation of a person to make medical decisions for you in the event that you are not capable of making the decisions yourself. Virtually everyone would be well advised to have a medical directive in place.