Top Ten Reasons People Procrastinate Estate Planning

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The great thing about practicing in the area of estate planning is that it’s the one thing everyone needs, and the one thing everyone asks me if I can do. But I do get a lot of inquiries from people who don’t go through with it. I also get a lot of clients in their 50’s and 60’s (and even older) who have never done any estate planning, or have not updated their estate planning since Jimmy Carter was president—and yours truly was watching Scooby Doo on Saturday mornings.

Here are the top ten reasons I hear for why people have put off this very important task.

10. “I don’t have enough assets to bother doing any estate planning.” Do you have minor children? Regardless of your assets, you should have a will that nominates who will be their guardian if you and their other parent should both die. Even if your assets are not all that significant, an estate planning package also includes powers of attorney for financial matters and for health care. Absolutely everyone should have both of these documents in place and should update them from time to time. Taking the simple step to put powers of attorney in place will enable the person you designate to take care of you if you become disabled, thus potentially avoiding an expensive guardianship proceeding, and possibly also a medical and ethical crisis.

9. “I’m afraid it will cost too much.” First, the cost is not prohibitive. You might ask the Oracle (=your iPhone) what estate planning should cost. Better yet, call around and find out what attorneys are charging in your area. Be prepared to give the attorney an idea of the nature and level of your wealth and your family situation, because this will affect the recommendations the attorney makes and the cost of the work. Second, if you have enough assets to generate any kind of probate proceeding, you have enough assets to pay for an appropriate level of estate planning.

8. “My kids can deal with it when I’m dead; I won’t care ’cause I won’t be around.” Fair to say, you won’t be around to see the mess you create. But is that any way to live your life? If you care about your family now, why would you not make the effort to make their lives easier in the future by nominating who will be in charge and providing for who gets what? The Golden Rule seems particularly apt here: “Do unto others as you would have them do unto you.”

7. “I don’t want to have to make all the decisions about who will be in charge when I die and who will get everything.” It will require you to do some thinking and some planning. You may have to get in contact with friends or relatives to ask if they would be willing to serve as your executor or as agent under your power of attorney. But your estate planning attorney will give you guidance, and the results are worth the effort.

6. “Calling around to locate a lawyer is icky. I would rather leave it on my “to-do” list for another day.” Conceded; calling lawyers out of the blue could be an unpleasant prospect. But with the internet, you can let your fingers do the searching and get some information about estate planning, and about local estate planning lawyers, in advance of picking up the phone. Lots of people who find me on the internet say they’ve read my biography or my reviews and they already like me from what they’ve read. (My biography is here  and my client reviews are here).

5. “I would like to get this done, but my husband isn’t ready.” This is tough. Married couples should do their estate planning together, or at least in coordination, particularly if they have community or joint property. If, after an appropriate amount of time has passed and your efforts to persuade him or her have been unfruitful, and it will not cause undue hardship on your marriage, you might consider making an appointment just for yourself. Your spouse may be more willing to follow suit if you pave the way.

4. “I don’t need a will because all my assets are in joint tenancy with my spouse.” Has it ever occurred to you that your spouse might die before you do? Or that you might die in a common disaster? What will happen then? A probate will be necessary at the death of the second spouse. If you and your spouse have children from prior marriages, all the assets will pass to the surviving spouse, and then to the children or heirs of the surviving spouse—unless you provide otherwise with a will or trust. If that is not the result you want, you should put some estate planning in place to provide for both spouses’ children.

3. “The wife and I did wills in ’76; I’m sure that’s good enough.” Hopefully, your assets have changed and increased since then; maybe enough to warrant establishing a trust. And your kids have grown up. Maybe you now have grandchildren to be taken into consideration. Your family may have some special needs that did not exist in ’76. The persons you nominated as executor may no longer be alive or willing to serve. If your antiquated will was not prepared with a self-proving affidavit signed by the witnesses, your executor may be unable to probate it if he or she cannot find those same witnesses and get them to sign an affidavit regarding your competency. There are lots of reasons to update your estate planning periodically. Get on the ball.

2. “I’m too busy.” We are all busy, for sure. Something has to be important, or we have to make it a priority, in order to fit it into our schedule. I recently heard a Chinese proverb quoted: “The best time to plant a tree was 20 years ago. The next best time is now.”

1. “I am afraid if I do my estate planning, it means I will die.” News flash: You will die whether or not you do any estate planning. Signing your will or setting up a trust will not induce that day to come any sooner. Getting your estate planning done by a professional will give you peace of mind, knowing that you’ve provided for an orderly administration and distribution of your assets when that day comes. Call today. Seriously.

Back to the Basics

back-to-basicsSchool has just started up again for many students, from grammar school to university. Everyone has had the summer to goof off, and now it’s time to get up to speed. At my office, I have recently met with a number of clients who are finally getting around to their estate planning, a task long-postponed for some. They all have questions for me, ranging from broad questions about how it all works to more sophisticated questions about tax planning; so mid-August seems like the perfect time to reflect on a few basic concepts in estate planning.

What is the difference between a will and a trust? A will is a document that becomes effective at the death of the person who created it, a/k/a the “testator”. To pass property via a will, it is generally necessary to lodge the will with the court in the jurisdiction where the testator lived at the time of death, and to petition the court to admit the will to probate. A probate takes time and costs money. It also has a public character to it, in the sense that the will can be accessed by the public and your nearest family members will receive a copy of it even if they are not beneficiaries under it.

A trust can be created during life and you can place your assets in the trust and administer them as trustee. Upon your death, or upon your becoming incapacitated, the person whom you name as successor trustee can take over the administration of the trust. At your death the successor trustee will administer and distribute the assets according to the provisions of your trust, without need of court supervision. If done properly, a trust will avoid a probate at your death, and also provides a level of disability planning that could avoid a guardianship. This saves money, and also keeps your estate planning out of the public eye.

Why do I need a will if I have a trust? If you have a trust, your assets will pass from the trust to your beneficiaries after your death. However, that only works for the assets that are actually in the trust. Any assets that were not placed in the trust, or were taken out of the trust, will need to be put into the trust after your death. If you have created a trust, you should also have a “pour over” will, meaning a will that leaves all your assets to your trust. If you do not have a pour over will, any assets not placed in your trust will pass according to intestate succession (unless such assets are held in a manner that controls their disposition at your death, such as a beneficiary designation account or a joint tenancy).

I have a trust in place but I want to make a few changes. Does it need to be completely redone or can it just be amended? It depends. If all you want to do is change a beneficiary or a successor trustee, it may make sense to do a simple amendment. If you need extensive changes, or if your trust is simply out of date with the law because of when it was prepared, it may be better to amend and restate it. This means a new trust agreement is prepared, which amends in its entirety the trust agreement you originally had. Sometimes it is less expensive to do this than to prepare a series of amendments.

Where can I get a power of attorney? Powers of attorney for financial matters and for health care are part of an estate planning package. You can also obtain forms on line. In Nevada, as in many states, the probate code provides a form for each of these documents. However, you should be aware that the forms are not necessarily easy to understand and they require you to make certain choices that are best understood if a lawyer explains them to you.

If you do not have estate planning in place or wish to have your existing plan reviewed, contact a qualified estate planning attorney today. Having a good plan in place will give you a sense of peace, knowing you will be taken care of in the manner you wish if you become disabled, and your loved ones or your favorite charities will be provided for at your death.

Trustee or Not to Trustee

Nevada Trust

Most people establishing a revocable living trust select a relative or friend to act as the trustee. Many people feel that this is a bestowal of honor or dignity being conveyed to the nominated individual. The trust creators rationalize the choice of related party as trusts have a very personal element – distributing accumulated assets to loved ones or charities. Yet, the relationships between family and friends grow complicated with emotions and other factors after the trust creator dies. The mere fact of a close relationship is not enough to qualify any individual for the role of trustee. We find that many clients benefit from the inclusion of a professional trustee to administer and distribute the trust estate.

We regularly hear from clients during the estate planning process that “my kids all get along,” and “they would never fight over this stuff.” However, there are frequent disputes between siblings related to the actions or omissions of the appointed trustee. Where parents intend to disinherit one child or make uneven distributions among the children while naming one child as trustee, the groundwork is laid for a conflict. Similarly, parents may desire to leave assets in trust for the benefit of a child, preventing the spendthrift child from blowing the accumulated wealth. By naming a sibling of the spendthrift beneficiary as the trustee of the trust share, clients make the appointed child the bad guy. The chosen trustee may quickly learn that the assigned task is nothing but pain and heartache.

Recently, our firm handled a case where the non professional trustee retained assets in trust for decades longer than she should have. The trust agreement called for the immediate disbursement of assets to several individuals and several charities. Rather than make the prompt distributions, the trustee kept the trust intact and reaped hundreds of thousands of dollars in fees for herself. The charities and individual beneficiaries suffered significant damages which were nearly impossible to collect from the destitute individual trustee.

To avoid these difficulties and provide for a more professional administration, we recommend naming a professional trustee, such as a Nevada trust company or bank. Due to our favorable trust laws and no state income tax, Nevada has a strong industry of professional trust companies. Some argue that professional trust companies charge a higher fee than a lay person. That may be true in isolation. Yet, if the beneficiaries fight the trustee through litigation or the trustee does not appropriately distribute the assets as described above, the professional trustee fees are much lower.

One of the great virtues of trusts is their flexibility. Trusts can be drafted to divide the duties between a professional fiduciary and the individual trustee. A trust company can take responsibility for tax issues, issuing account statements, and making investment decisions. The non-professional trustee can be in charge of making distributions to the beneficiaries. The individual trustee will understand the beneficiaries’ problems and idiosyncrasies and can better address the individuals’ needs.

For those who have trusts presently, you may consider removing and replacing your current trustee with a professional. For those considering a trust, we would be happy to discuss the advantages of naming a professional trustee.

Gift Taxes in a Nutshell

Title Deed with keysWhen does my generosity, or my desire to give gifts during my life, trigger the application of federal tax laws regarding gift taxes? Consider the following scenarios:

  • Declan wants his daughter Fiona to receive his residence at his death. He and his late wife purchased the property for $30,000 in the early 1950s. He signs and records a deed in 2015 that conveys the property to himself and Fiona as joint tenants. As of the date of the conveyance, the property is worth $300,000. He continues to reside there and to pay all property taxes, insurance and maintenance.
  • Teresa opens a bank account in 2014 and transfers $500,000 to the account. She names herself and her son Juan as joint tenants with right of survivorship at the time she opens the account. Under the account terms, both Teresa and Juan have the right to withdraw the entire amount of the bank account at any time. Juan does not withdraw any funds from the account the first year. He withdraws $40,000 in 2015 to pay his college tuition.

Has Declan or Teresa made a taxable gift? If so, when was the gift made and for how much? Could either of them have achieved the same result but avoided the gift tax rules?

The gift tax is a tax imposed on certain gifts made during life. Not every gift is taxable. The IRS allows a generous annual exemption, currently $14,000, per donee. This means you may give up to $14,000 each year to an unlimited number of recipients without having to file a gift tax return. (The amount was established at $10,000 and is increased periodically for inflation; it has been $14,000 since 2013). Also, you may give unlimited gifts to your spouse (if a U.S. citizen) or to §501(c)(3) charities without incurring a tax. You may also pay tuition for education and medical bills on another’s behalf without tax consequence if you pay such amounts directly to the educational institution or health care provider.

Even if you make gifts that are taxable, Congress has provided for a unified credit that allows you to make otherwise taxable gifts throughout life and at death up to a sum total of $5,450,000 (for those who die in 2016) without paying a gift or estate tax. The credit is “unified” in the sense that it is applied both to gifts made during your life time and to gifts made at death from your trust or estate, up to the maximum credit. Each year the unified credit is adjusted upward for inflation. Gifts made above that amount are taxed at a whopping 40%.

Returning to our examples, the fact is that both Declan and Teresa have made taxable gifts that require a gift tax return to be prepared and filed with the IRS; and both could have avoided this result with some good legal advice and planning.

Declan has made a taxable gift of one half the value of the real property, or $150,000, to Fiona. He can count the first $14,000 toward the annual exclusion, but he still must file a gift tax return for the remaining $136,000. Even worse, since the transfer was made during his life time, if and when Fiona sells the house after his death she will have to pay a capital gains tax on the increase in value from the $30,000 purchase price. Had Declan conveyed the property to her at his death, she would have received a step up in basis, meaning the base price for considering a capital gains tax would have been the value at his date of death, rather than the value of the original purchase in the 1950s. This would have been a huge tax savings to Fiona. It would also have eliminated the requirement of the gift tax return.

Teresa makes a gift of $40,000 to Juan in 2015 when he withdraws that amount from the account. She must file a gift tax return for the gift, after offsetting the amount of the annual exclusion. The joint bank account is treated differently than a joint tenancy in real property; until and unless Juan withdraws money from the account over and above any contribution he may have made to the account, there is no gift because Teresa can still withdraw the whole amount. Here, Teresa could have paid Juan’s school directly for the tuition without any gift tax consequence.

Note that for both Declan and Teresa, assuming no previous gifts have been made, no actual tax is due because the unified credit will cover these relatively modest amounts; but the hassle and cost of preparing the gift tax return could have been avoided. Moreover, if either has an estate that will exceed the unified credit at the time of death, these gifts will have negative consequences for their estates.

If you are thinking of making a large gift, it is well worth consulting with your accountant or estate planning lawyer to ensure you take advantage of the gift and estate tax rules to minimize or eliminate your tax liability.

Small Estate Affidavits; Or, How to Know If Someone Has Authority to Act on Behalf of an Estate – Part II

scales-of-justice  In my previous blog post, I addressed how you know whether someone has authority to act on behalf of an estate. I explained that letters testamentary, provided they are recently certified, furnish proof that the person in question has been appointed executor or personal representative of the estate. What if the person presents not letters testamentary but an affidavit?

Suppose for example that you are a bank clerk in Twin Falls, Idaho. A woman comes in to your branch and shows you an affidavit saying that a bank customer who was a resident of Elko, Nevada has died and she is entitled to receive the whole of the customer’s estate. The account has $9,000 in it and there is no “pay on death” beneficiary. The affidavit is supported by a will purportedly signed by the customer and leaves everything to the woman in question, who is a cousin of the decedent. It also identifies a vehicle of the decedent. The affidavit purports to be made pursuant to NRS 146.080.

What should the bank clerk do? How does the clerk know if the affidavit is true? Should the clerk get more documentation? Can the clerk demand a court order instead of the affidavit?

NRS 146.080 allows a beneficiary of a will or an heir of an intestate estate to obtain the decedent’s property if the decedent left less than $20,000 (excluding sums due for service in the armed forces) and no real property in decedent’s individual name. An affidavit can be used if at least forty days have elapsed since the decedent’s death. It must identify the affiant (the person making the affidavit) by name and address and state that the affiant is entitled to the decedent’s property. The affidavit has to state, among other things, that there is no petition for the appointment of a personal representative pending in any jurisdiction nor has any such petition been granted, and that all of decedent’s debts have been paid or provided for. It must describe the personal property claimed. It must state that the affiant has given written notice by personal service or certified mail, identifying the affiant’s claim and describing the property to all persons whose claim is equal or greater than affiant’s, and that fourteen days have elapsed since such notice was given. Additional requirements are listed in the statute.

Effective October 1, 2015, the small estate affidavit rules have been revised to allow a surviving spouse to obtain property up to a value of $100,000, and any other qualified person to receive property up to $25,000 by this method. The legislative changes also provide that the affidavit must state that the affiant has no knowledge of any existing claims for personal injury or tort damages against the decedent. Finally, the value of decedent’s motor vehicles is now to be excluded when calculating the value of the estate. Note, however, that the DMV will still need to see the affidavit and the affidavit must identify any and all vehicles that the affiant wishes to transfer.

Back to our example: if the affidavit is properly completed and the bank clerk has no reason to believe anything is amiss, it is proper to give the money to the person presenting the affidavit. The bank fulfills its obligation to the heirs or to the estate if it relies in good faith on the affidavit. That said, very often banks and brokerage firms outside of Nevada are not familiar with this provision of Nevada law and do in fact insist that a court order be obtained. If the bank refuses to turn over the account, the beneficiary may have to file a petition in court to set aside the account to herself.

If you are presented with a question about whether a small estate affidavit is valid under Nevada law, you should consult with a Nevada probate attorney before taking action.