Remove all Doubt

Doubt is a trouble-maker for those who are left behind by your passing.  You are encouraged to reduce or eliminate the room for doubt.  I found the below article to be loaded with helpful suggestions for making things clear. 

Documents you need before you die

Your family members will need to know how to handle your affairs after your passing. To do so, they'll need essential documents that you've prepared for them.

This article was reported by Saabira Chaudhuri and Mary Pilon for The Wall Street Journal, and the article appeared online in the Wall Street Journal Digital Network. 

It isn't enough simply to sign a bunch of papers establishing an estate plan and other end-of-life instructions. You also have to make your heirs aware of them and leave the documents where they can find them.

Consider: At least 10 states have been investigating whether some of the country's largest insurers are failing to pay out unclaimed life policies to beneficiaries. California and Florida have held public hearings on the issue recently.

Insurers say they are behaving lawfully. Under policy contracts, they aren't required to take steps to determine if a policyholder is still alive, but instead pay a claim when beneficiaries come forward.

How to store important documents

You can avoid such problems by securing important documents and telling your family where they are stored.

Jean Parr is grateful that her mother obsessed about the subject. "I really didn't want to think about it," says Parr, 54, a manager at the American Chemical Society in Washington, D.C. But when her mom died in 2005, she knew exactly where to look for the will, the key to a safe-deposit box and documents indicating her mother had paid and arranged for her own funeral.

The financial consequences of failing to keep your documents in order can be significant. According to the National Association of Unclaimed Property Administrators, state treasurers currently hold $32.9 billion in unclaimed bank accounts and other assets. (You can search for unclaimed assets at MissingMoney.com.)

Most experts recommend creating a comprehensive folder of documents that family members can access in case of an emergency, so they aren't left scrambling to find and organize a hodgepodge of disparate bank accounts, insurance policies and brokerage accounts.

You can store the documents with your attorney, lock them away in a safe-deposit box or keep them at home in a fireproof safe that someone else knows the combination to.

That isn't to say you should keep everything. Sometimes people hold on to so many papers that loved ones can't find the important ones easily.

In 2008, Jane Bissler, a counselor in Kent, Ohio, approached her then-87-year-old mother about organizing her documents. Because her mom was a widow with relatively simple finances and two homes, Bissler, 57, says she figured it would be a relatively simple task.

Instead, it took an entire year for Bissler and her mother to go through all of her papers, which included documents from eight bank accounts, utility bills from the 1950s and reams of canceled checks.

The two of them pared down the stash from four four-drawer filing cabinets to one two-drawer cabinet, shredding anything extraneous. Bissler and her mother visited banks and brokerages to ensure she was listed on all of her mother's accounts. Her mother died in May 2009.

"It would have been a total nightmare if we hadn't gone through it all with her," Bissler says. "It was that Depression-era stuff where you keep everything and hide other things." Bissler estimates that having the documents organized ahead of time spared them from ordering an additional 15 copies of the death certificate, and "years" of time.

Here is a rundown of the most important documents you'll need to have signed, sealed and delivered. You should start collecting these as soon as possible and update them every few years to reflect changes in assets and preferences. Some -- such as copies of tax returns or recent child-support payments -- need to be updated more often than others.

The essentials

An original will is the most important document to keep on file. A will allows you to dictate who inherits your assets and, if your children are underage, their guardians. Dying without a will means losing control of how your assets are distributed. Instead, state law will determine what happens.

Wills are subject to probate -- legal proceedings that take inventory, make appraisals of property, settle outstanding debts and distribute remaining assets. Not having an original document means this already-onerous process could be much more of an ordeal, since family members can challenge a copy of a will in court.

Rick Law, founder of estate-planning firm Law ElderLaw LLP in Aurora, Ill., says estate planners increasingly recommend revocable trusts in addition to wills, since they are more private and harder to dispute. "Every will is like a compass that points toward the closest courthouse," he says.

A revocable living trust can be changed anytime during your lifetime. After you transfer ownership of various assets to the trust, you can serve as the trustee on behalf of beneficiaries you designate. Provided you do so, there aren't any ongoing fees.

If your family can't find the original trust documents, you are "basically setting your estate up for litigation," says Duncan Moseley, vice president of Sanders Financial Management in Atlanta.

A "letter of instruction" can be a useful supplement to a will, though it doesn't hold legal weight. It is a good way to make sure your executor has the names and contact information of your attorneys, accountants and financial advisers. While the will should be stored with your attorney or in a courthouse, the letter of instruction should be more readily accessible, particularly if it contains instructions on funeral arrangements.

How to store important documents

Also, make sure your heirs have access to a durable financial power-of-attorney form. Without it, no one can make financial decisions on your behalf if you are incapacitated.

Proof of ownership

You should keep documentation of housing and land ownership, cemetery plots, vehicles, stock certificates and savings bonds; any partnership or corporate operating agreements; and a list of brokerage and escrow mortgage accounts.

If you don't tell your family that you own such assets, there is a chance they never will find out. Moseley says in such an event, clients must perform their own detective work, watching the mail for real-estate tax bills or combing bank accounts for interest payments, for example.

File any documents that list loans you have made to others, since they could be included as assets in an estate. Similarly, keep a list of any debts you owe to avoid surprising your family. Wills and living trusts generally are drafted to include provisions for how debts should be settled, and creditors have a stipulated period of time in which to file a claim against the estate.

Make the most recent three years of tax returns available, too. "Looking at last year's returns offers a snapshot of what assets we should be looking for this year," says Lesley Moss Mamdouhi, a principal at estate-law firm Oram & Moss in Chevy Chase, Md. This also will help your personal representative file a final income-tax and estate return and, if necessary, a revocable-trust return.

Bank accounts

Rick Law recommends sharing a list of all accounts and online log-in information with your family members so they can notify the bank of your death. "If nobody ever takes any more out or puts money in, it becomes a dormant account and then becomes the property of the state," he says.

Be sure to list any safe-deposit boxes you own, register your spouse or child's name with the bank and ask them to sign the registration document so they can have access without securing a court order.

Health care confidential

Possibly the most important health care document to fill out in advance is a durable health care power of attorney form. This allows your designee to make health care decisions on your behalf if you are incapacitated. The document should be compliant with federal health-information privacy laws, so that doctors, hospitals and insurance companies can speak with your designee. You may also need to fill out an Authorization to Release Protected Healthcare Information form.

If you are incapacitated and your family members can't locate a health care power of attorney, they will have to go to court to get a guardian appointed.

Porter Storey, executive vice president of the American Academy of Hospice and Palliative Medicine in Glenview, Ill., says it isn't enough to establish a health care power of attorney unless you have explained to your designee how you would like to be treated in case of incapacity. He also recommends writing a living will detailing your wishes.

Diane Dimond's mother had a series of strokes in 2006, and Dimond knew there was a signed living will tucked away in a safe at home. Dimond, 58 and living in New York, recalls the Sunday she watched her mother in a coma and was able to fulfill her wishes never to be kept on external life support. "It was gut-wrenching," she says, "but I took the physician aside and said, 'I want to take her home.'" Having her mother's living will enabled Dimond to do just that.

The living will and the power of attorney constitute what are called "advance directives"; some states consolidate these into a single form. (AARP offers a state-by-state listing of advance-directive forms on its website.) Terminally ill patients may wish to have their doctors sign a do-not-resuscitate order.

Certain companies, such as Advance Choice's DocuBank, will keep copies of health care documents for a fee. Subscribers get a wallet-sized card, and, in case of an emergency, a hospital will call DocuBank, which will fax over the information.

Life insurance and retirement accounts

Copies of life insurance policies are among the most important documents for your family to have. Family members need to know the name of the carrier, the policy number and the agent associated with the policy.

Be especially careful with life insurance policies granted by an employer upon your retirement, since those are the kind that financial planners most often miss, says David Peterson, CEO of Denver-based Peak Capital Investment Services. New York state alone is holding more than $400 million in life-insurance-related payments that have gone unclaimed since 2000, according to the state comptroller's office.

Estate planners also recommend that you draw up a list of pensions, annuities, individual retirement accounts and 401ks for your spouse and children.

An IRA is considered dormant or unclaimed if no withdrawal has been made by age 70½. According to the National Association of Unclaimed Property Administrators, tens of millions of dollars languish in unclaimed IRAs every year.

If your heirs don't know about these accounts, they won't be able to lay claim to them, and the money could languish. The U.S. Department of Labor estimates that each year tens of thousands of workers fail to claim or roll over $850 million in 401k assets. You can track unclaimed pensions, 401ks and IRAs at Unclaimed.com.

Marriage and divorce

Make sure your spouse knows where you have stored your marriage license. Mary Cay Corr, now 74 and living in Raleigh-Durham, N.C., couldn't locate hers when her husband died. "I had to write to New York, where we got married, and pay for a new marriage license to prove that I had been married to my husband before I could claim anything," she says.

For divorced people, it is important to leave behind the divorce judgment and decree or, if the case was settled without going to court, the stipulation agreement, says Linda Lea Viken, president of the American Academy of Matrimonial Lawyers in Chicago. These documents lay out child support, alimony and property settlements, and also may list the division of investment and retirement accounts.

Include the distribution sheet listing bank account numbers that accompanied the settlement, to avoid disputes about ownership or payments due. Also include a copy of the most recent child-support payment order. In most states, the obligation to pay child support still exists after death.

Viken also recommends filing copies of any life insurance papers. In many states, if you have a policy that benefits your children, it can be set off against the ongoing child support.

You also should include a copy of the "qualified domestic relations order," which can prove your spouse received a share of your retirement accounts.

This is a very useful list for organizing your information and taking steps to remove doubts about your intentions and your affairs.  Like many of my blog posts, I encourage you to print this list, put it in a special folder dedicated to managing your estate.  If you encounter questions from any of the articles in your folder, please contact me.  I like helping people organize their affairs, manage their estates, and ease confusion for family members.  Just call me or send me an email, and we can discuss the likely ways to solve the issues on your mind.

Estate Planning Tips That Prevent Family Feuds

“Family Feud” is a television show, but they often happen in real life after the passing of a loved one.

I think you will find this article an interesting read, and it will likely offer a few sage comments for managing your own life and the relations with some of your family members.

Estate Planning Tips That Prevent Family Feuds

by RANIA COMBS, and attorney at law, who originally posted this article on Texas Will and Trusts online. 

When I was a girl, my mother enjoyed needlework. She would painstakingly sew for hours, crafting beautiful pieces like the one in the image above.  My husband thinks that piece of needlepoint is a bit old fashioned, but I love it. For years it hung in the living room of my parents’ house, welcoming me home from school each day. To me, it represents my mother’s hard work, creativity and attention to detail. Just looking at it brings back wonderful memories of my childhood.

Because she knew how much I admired it, my mother gave it to me several years ago. It now hangs over a gentleman’s chest in my bedroom where I can see it every day. It has very little monetary value, but priceless sentimental value. It is something I will always treasure.

Sentimental Items Can Be Source of Conflict After the Death of a Relative

When people plan their estates, they often take great care in planning for the disposition assets with significant financial worth, such as their homes, 401Ks, IRAs, jewelry and valuable pieces of art. But it’s typically the items that hold sentimental value for many family members that create the most conflict after the death of a loved one.

For example, Deborah L. Jacobs’ article “Little Things Can Cause Big Fights When a Relative Dies” explains how three siblings fought over a glass bowl that their grandmother owned. The bowl was not a valuable antique, but rather a free gift their grandmother had received when she purchased a package of store-bought Christmas pudding.

However, the bowl had sentimental value for all the children because their grandmother used this bowl to serve them breakfast when they slept over at her house.  The siblings’ mother, who now has the bowl, has actually considered burying it to avoid any conflict that may arise when she dies.

Estate Planning Tips That Prevent Family Feuds

If you are concerned that certain pieces of tangible property could be the source of conflict after you die, there are several steps you can take to minimize the changes of that occurring. In her article, Jacobs offers the following tips on how disposing of tangible items with sentimental value:

1.  Talk to your family members about what items hold special sentimental value for them. Include a memorandum with your will directing who should receive each item when you die. Or consider giving them the property during your lifetime, like my mother did.

2.  While you’re still alive, have family members write their names on the bottom of the items they would like.

3.  If you have numerous family members and only one or two valuable possessions, direct that an independent executor sell those pieces and divide the proceeds among your family members.  A family member who can afford to purchase the piece can buy it from the estate.

4.  Make a specific gift of property with sentimental value in your will. That way, there will not be a question about who should receive that item.

For many relatives, sentimental items can be just as important, if not more so, than money in the bank.  This article is a helpful guide, and I encourage you to print it out and keep it in your file of helpful information for managing your affairs. 

If I can assist you in any way, please call me or contact me by email.  I’ve spent years developing my expertise in these areas of estate management, and I would enjoy applying my expertise to assisting you.

Contemplating your own mortality or incapacitation

Contemplating your own mortality or incapacitation, as estate planning requires you to do, is off-putting under the best of circumstances. And estate planning is often put off to avoid the reality that life is not endless.  This is compounded by the seemingly constant flux of the tax code which allows the “avoiders” to put estate planning even further on the back burner.

A recent article on Yahoo Finance highlights the minimum that you should do in spite of all the reasons to avoid the hard work of estate planning.   5 Estate-Planning Tasks That You Shouldn't Put Off by Christine Benz of Morningstar. 

It is a short read, and you are encouraged to take a few minutes to review the 5 tasks.  Commit yourself to a specific time to tackle these 5, and your estate will be much better for it.

Keeping tabs on the estate-planning rules during the past few years has been a little like watching Olympic-level table tennis: The action moves quickly, and it's difficult to keep up.

The amount of assets that could pass estate-tax-free drifted upward for most of the 2000s, and the estate tax went away altogether in a single year, 2010. Extremely generous exclusion amounts, which allow estates of more than $5 million to escape the estate tax, have prevailed for 2011 and 2012. But the tax is set to return with a vengeance in 2013. Barring Congressional action, estates of $1 million will be subject to the estate tax starting next year, and the top estate tax rate will be 55%.

But even if the amount of assets subject to the estate tax increases above the $1 million level that's planned for 2013, I'd still take the threat of higher estate taxes as a wake-up call. The exclusion limit has been extraordinarily benign for the past three years, affecting only very wealthy families, but it might not remain that way. When you consider that real estate holdings are included in one's total estate value, it's not hard to see how reducing the exclusion amount to $1 million or less could touch a lot more families. Even if the exclusion amount remains very high, the core estate-planning to-dos are actually pretty evergreen and don't have anything to do with the tax regime. They could, however, have an extraordinary impact on whether your wishes are carried out before and after you die.

Here are the key estate-planning to-dos.

Task 1: Update Your Beneficiary Designations

Even if you've never set foot in an attorney's office, you've laid the groundwork for an estate plan if you've filled out beneficiary designation forms for your financial accounts. Those designations, in fact, trump other estate-planning documents when it comes to distributing your assets, so it's worthwhile to periodically review them to make sure they're up-to-date with your current situation--if you've gotten married or divorced, or example. (How would your spouse feel if you inadvertently left your 401(k) account to your brother?) And if you have drafted estate-planning documents such as a will, your attorney should be able to help you review your beneficiary designations to ensure that they sync up with those documents. This article provides guidance on beneficiary designation dos and don'ts.

Task 2: Designate Legal Guardians

Here's another step that's important regardless of asset level: Parents of young children should designate legal guardians who will look after their children if the parents should die or otherwise be unable to care for their minor children. Spouses often put off this step because they disagree about guardianship, but it helps if you can focus the discussion on actual child-rearing abilities and willingness to do the job. Don't get hung up on hurting anyone's feelings or bypassing friends or family members who might expect to be your guardians but aren't the best choice. (Naming someone a guardian because you're a guardian for their children isn't a good reason.) Most important, your guardian should be willing and able to take care of your children if the need arises, so an essential step is to discuss the responsibilities with the potential guardian and make sure he or she is on board. You also want your children's guardian to share you and your spouse's values and views on parenting; financial wherewithal should be a consideration, as well. It's also worth noting that it's possible to name two guardians--one to take care of your child's needs on a day-to-day basis and another to supervise the child's financial assets. But that's usually not practical for obvious reasons.

Task 3: Create a Living Will and Last Will and Testament

A living will is another document that's important no matter what your asset level is; it tells your health-care providers and your loved ones how you would like to be cared for if you should become terminally ill and unable to express your wishes yourself.  Called a "medical directive" in some states, this document details your views toward life-support equipment. Not to be confused with a living will, a last will and testament details how you'd like your assets and possessions distributed after your death.

Task 4: Draft Powers of Attorney

Estate planning doesn't just relate to death and dying: A basic estate plan should also address what would happen to your affairs if you are still living but incapacitated. A power of attorney is a document that specifies who will handle your affairs if you are unable to do so. You'll need to draft two separate documents: one that names your power of attorney for health-care decisions and another for financial matters (often called a durable power of attorney). The person you entrust with your power of attorney for health care will, ideally, live in close geographic proximity to you and will also understand your general wishes about your own health care. The person who you name on your durable power of attorney form should be detail-oriented and comfortable with financial matters, and he or she should also have a general understanding about your attitudes toward and goals for your money.

Task 5: Name an Executor

Your executor will gather all of your assets after you're gone and make sure they are distributed in accordance with your will. Ideally, your executor will be someone who's comfortable with numbers and good with details, and will also be able to find the time to work on your estate. It's common to name family members as executors, but in more complicated situations it might be preferable to use a professional, such as a bank trust officer, to serve as your executor. It's a good idea to tell your executor that you've named him or her, and also provide details on how to obtain access to important documents, such as your will and a master directory detailing all of your accounts.

Hopefully you’ve been motivated by these 5 Tasks that should not be put off.  If I can be of assistance, please call me or comment on this posting. And remember, “Don’t put it off”, so contact me this very moment.  

The Dilemma of Disinheritance

The motives for cutting a relative out of an estate range from the most primal — hate, abandonment, regret — to the most rational.

Planning what to leave behind to loved ones can be a difficult matter since, even with taxes out of the picture, it means explaining your choices and your hopes. On the other hand, planning to specifically disinherit someone can be even more difficult.

Inheritance and disinheritance are emotionally charged concepts. The motivations that go into disinheritance are especially complex, as discussed in a recent article in The Trust Advisor titled Why Are Family Members Disinherited?.

Teaching point: If you are considering disinheritance, then it also is important to think about what that means, both for yourself and the excluded heir. There are many reasons to disinherit, some more reasonable than others and some worth abandoning upon meditative reflection.

Still, if you must disinherit, then consider explaining your basis for that decision. While it is your choice and right, your legal documents must be clear and withstand (oftentimes) inevitable legal challenge by the affected heir.

If you want to talk in more detail about a disinheritance issue, please contact me.  I’m available to answer questions and to meet with you.

Reference: The Trust Advisor (April 15, 2012) “Why Are Family Members Disinherited?”

 

Good Preparations create a Graceful Exit

The wealth of many boomers is tied up in businesses they own. And that can be a problem when it comes time to retire. The Wall Street Journal published a very good article on this topic, and my WealthCounsel colleague, Lizette Sundvick, added the below commentary.

If you’re a small business owner, then you probably speak of your business and your life in the same breath. There’s nothing wrong with that. In fact, you are in good company.

All told, your business is one of the biggest challenges and accomplishments in your life. That said, it’s rare that the business is the only fulfilling thing in your life. In addition, do you really want to continue working in and on your business until the day you die, with no retirement or with old-age eventually getting in the way?

With your life and your business so intertwined, it makes it all the more necessary to plan properly.

The Wall Street Journal took up this matter in a recent article titled Preparing to Leave. I recommend this article to your reading list because it both warns of mistakes and offers solutions.

To whet your appetite, here are the “mistakes” identified:

1. Creating a business that’s too dependent on the owner.
2. Ignoring the tax benefits of planning ahead.
3. Incorrectly valuing the business.
4. Rushing to accept a rich number.
5. Hiring your brother-in-law to do the deal.
6. Underestimating the emotional impact of selling a business.

Like those old movie matinees, I am going to leave you pondering the solutions to these “cliffhangers.”

In the end, only you know when to hold’em and ergo when to fold’em when it comes to the continuation of your business. However, don’t delay. You, your loved ones and others dependent on the business will be glad you didn’t.

Any one of these issues is well worth meeting and talking about, so I invite you to call me to set up a meeting.  Let’s make sure you’re prepared to “Exit Gracefully”.

Reference: The Wall Street Journal (April 29, 2012) “Preparing to Leave”

 

 

Tax Court Rules for Taxpayer in Transfer of Closely-Held Business Interests

The Tax Court has just passed a new technique that closely-held businesses owners —and wealthy families — can use to pass assets to heirs with a minimal amount of taxes and complications. The ruling in the case, Wandry v. Commissioner, is stirring up excitement among experts.  The below commentary was written by a WealthCounsel associate, Lizette Sundvick, who practices throughout southern Nevada.

Just between us, isn’t it nice when the IRS loses a case to a taxpayer? For example, the little-guy victory in the landmark case of Wandry v. Commissioner affirms and simplifies a very powerful tool for passing on wealth, especially for the business owner.

While the case and the estate planning tool in the crosshairs have been the subject of previous articles, The Wall Street Journal provided a new explanation of the two in an article appropriately titled “Shielding the Family Business.”

The basic plan for wealth transfer when there is a business involved is to give it in pieces, and that’s precisely the plan that benefits from Wandry v. Commissioner. Giving away the entire business outright is a good way to take a tax hit, since it will invoke a gift tax when you cross certain thresholds during the year and in your lifetime.

There’s currently a lifetime exemption of $5.12 million and an annual exclusion of $13,000. Nevertheless, it’s easy for a business to be worth more than $5.12 M, and using that exclusion in full will drain what you have available against the estate tax later at death. However, by their very nature and structure, business interests are especially amenable to piecemeal ownership transfer. This is because ownership of the business, and therefore the underlying assets owned by the business, is an abstraction, and you can simply gift your interests in the business without a tax hit. For example, you can chip away by giving a usefully small amount, say, $13,000 per year per individual (or whatever number Congress and the IRS set for that year), without gift taxes.

Of course, gifting business ownership is not entirely ideal. Fortunately, that’s what the Wandry v. Commissioner case tries to fix. Gifting exactly $13,000 is pretty easy by simply writing out the figures and name on a check. On the other hand, with an abstraction like business ownership, the gift depends on the value of the business and, more to the point, on the value that you and the IRS agree or disagree about.

If you give $13,000 of ownership on the basis of your valuation, but the IRS adds up $15,000 based on its own valuation, then the IRS might also think you owe a tax (or, alternatively, that your gift/estate tax exemption should erode by that much). As you might have guessed, that’s exactly what happened in the Wandry case. Unfortunately for the IRS, the court held that the Wandrys had clearly intended to give their annual exemption amount and, if there is a new appraisal and higher valuation of the gift, then the excess wasn’t intended to be gifted in the first place.

As is always the case with the law, there is much more to this case and more guidance to be gleaned for the business owner. I would recommend reading the original article if you are or will be transferring interests in your business. As always, make sure you engage qualified legal counsel before taking action.  I am available to talk on the phone or meet in person.

Reference: The Wall Street Journal (April 30, 2012) “Shielding the Family Business”

Separation of Church...and Estate

For many people, estate planning isn't just about financial assets and other practical concerns. It's also about honoring their religious beliefs and passing those values on to family members. That can be very tricky ground.  My legal colleague, Lizette Sundvick, has offered the below commentary in reference to a good Wall Street Journal article on this topic.

Planning your estate may seem like a simple matter of deciding who gets your stuff when you’re gone. What if you are a person of great faith and religious conviction? How does a person of faith plan for his or her estate when life (and especially life beyond) is so much more than mere “stuff”?

The problem of mixing religion and estate planning – that is, the problem of doing it well – is taken up by the Wall Street Journal in an article titled Joining Church and Estate.

If your decisions during life are guided by your faith, then likely your estate decisions will be too. For example, end-of-life, disposition of remains and even charitable giving decisions are oftentimes determined by one’s religious beliefs. These are personal decisions that directly impact you and collaterally impact others.

However, it is an entirely different matter to make religiously-motivated decisions for others. Given the numerous alternative planning strategies and tools available to plan your estate, it is possible to make (or attempt to make) religious decisions for your heirs. This is where problems can arise.

In the extreme, you can move beyond encouraging to requiring the observance of certain religious principles, rituals, or lifelong membership in the given religion to secure any inheritance. As the Wall Street Journal article illustrates, this is where problems can arise. In short, requiring heirs to uphold religious principles they do not share can work to undermine them.

The article discusses some particularly poignant examples and real life court battles. It’s worth a read and serious consideration when trying to strike that delicate balance of encouraging without alienating those whose beliefs may differ from your own.

I stand ready to assist you in striking the delicate balance between church and estate.  Please call me or email, and we’ll find a time to meet.

Reference: The Wall Street Journal (April 30, 2012) “Joining Church and Estate”