revocable trusts

The Foundation – Part 2: Probate Avoidance

Continuing with Part 2 of this three part series, I am going to briefly cover some of the most popular probate avoidance strategies. As a refresher, the purpose of this series is to cover the fundamentals and foundation of estate planning and some of what I typically go through with a client during an initial estate planning consultation, including the following topics:

Part 1 – Last Wills & Testaments and Powers of Attorney
Part 2 – Basic Probate Avoidance Strategies
Part 3 – Joint Revocable Living Trusts

For purposes of this post, it is extremely important to remember that if any of the following probate avoidance measures are used with respect to any of your assets, the distribution of those assets upon your death will NO LONGER be controlled by your Last Will & Testament. The designation or form you used to avoid probate will now control the distribution of that asset upon your death. This is one of many reasons why it is important to talk to an experienced professional when drafting your estate plan; the experienced professional can work with you to ensure that your entire estate plan (i.e., your Will, your beneficiary designations, etc.) works together to achieve your desired goals and results.

Example: The “Average” Estate

A significant portion of most individuals’ estates are made up of the following assets: a house, bank accounts, retirement/brokerage accounts, life insurance, an automobile and tangible personal property (e.g., your household furnishings, antiques, collectibles, etc.). By implementing a few of the probate avoidance strategies below, most individuals will have the peace of mind in knowing that a significant portion of their estate, if not all of it, will avoid probate.

And, even if not all of the assets avoid probate (e.g., like the car and the tangible personal property), if those remaining probate assets are below a certain threshold amount, your State may still provide a way to transfer those assets without the need for probate after your death (e.g., in Wisconsin, if you probate assets are under $50,000, they can be transferred by affidavit and probate can be avoided). This should be a goal for almost all estate plans – to at least have the value of your probate assets below the probate threshold amount in your State.

Joint Ownership

Generally, any assets held and titled as joint ownership property pass to the survivor of the joint owners outside of probate. Common assets that can be held jointly include bank accounts and real estate. However, keep in mind that the asset will pass fully to the survivor, even if you wish it to go to someone else.

Beneficiary Designations

Any assets where you can and do designate a beneficiary will pass to the beneficiary outside of probate. Common assets where beneficiary designations are used include retirement accounts (e.g., pension plans, 401(k)s, IRAs), life insurance policies and brokerage accounts. If you wish to designate a beneficiary to any of these types of accounts, you can do so by requesting a beneficiary change form from your account administrator.

Payable on Death Accounts

Similar to beneficiary designations, payable on death accounts allow you to designate a beneficiary of that particular account. If such a beneficiary is designated, that account will pass to the beneficiary outside of probate upon your death. Payable on death accounts are particularly useful when it comes to your bank accounts. Most banks (if not all) will allow you to name a beneficiary to your bank account, you just need to speak to your banker.

Transfer on Death Designations

Again, similar to beneficiary designations, transfer on death designations are used to pass interests in property upon your death to a named beneficiary without the need for probate. The most common use of transfer on death designations are for real estate and business interests. This type of probate avoidance strategy will usually involve seeing an attorney to draft the transfer on death designation.

Marital Property Agreements (with Washington Will provisions)

For married couples in some States, marital property agreements with Washington Will provisions can be used to pass all of the decedent spouse’s property to the surviving spouse upon the death of the first spouse without the need for probate. If otherwise consistent with your estate plan, this can make the time and expenses involved at the first spouse’s death much easier to cope with. However, only some States allow for this type of probate avoidance strategy. This will also require you to see an attorney to draft the agreement.

Trusts

Any assets held in trust will also pass to (or be held for) the beneficiary of the trust without the need for probate. Generally, almost any asset can be held in trust; thus, this can provide a lot of flexibility and the most overall probate avoidance. Additionally, this will also require an attorney to draft the trust agreement. In Part 3 of this series I will focus solely on trusts so be sure to check that out once I post it.

Recap: The “Average” Estate

Above I stated that a significant portion of most individuals’ estates are made up of the following assets: a house, bank accounts, retirement/brokerage accounts, life insurance, an automobile and tangible personal property. The following is a recap of the probate avoidance strategies that can be used to pass those assets to your heirs without the need for probate:

  • House – joint ownership, transfer on death designations, and trusts.
  • Bank accounts – joint ownership, payable on death accounts, and trusts.
  • Retirement/brokerage accounts – joint ownership, beneficiary designations, and trusts.
  • Life insurance – beneficiary designations and trusts.
  • Automobile and tangible personal property – joint ownership and trusts.

Conclusion

As you can see, there are multiple ways to avoid probate in regards to a particular asset and among your entire estate. The strategy and combination of strategies chosen will be different for every individual; some strategies may provide more advantages than other strategies depending on your individual circumstances. Additionally, many of the above probate avoidance strategies can be achieved for relatively little cost and time while saving your estate and your heirs A LOT of time and expense after you pass.

However, like I stated in Part 1, any plan starts with a good and solid foundation, and that includes your estate plan. That means that even if you engage in the above probate avoidance strategies, you still need to have a Last Will & Testament to “catch” those assets that you may have missed or that could have fallen outside the probate avoidance measures you took. Probate avoidance strategies must be integrated into an already existing solid estate plan; otherwise, the benefits and advantages such strategies provide will be diminished.

Make sure to check out Part 3 (Trusts) of this series when I post it. And, lastly, like with any topic I blog about, I am only scratching the surface of these topics, you must contact a professional in order to fully consider how these estate planning strategies will play out in your individual circumstances.

I hope this helps!

-Matt

 

© 2015 Matthew D. Brehmer and Crummey Estate Plan.

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The Foundation – Part 1: Wills and Powers of Attorney

Many of my posts so far have focused on what some may consider “higher level” estate planning; but, what about the estate plan foundation that everyone needs? In this three part series, I am going to briefly cover the fundamentals and foundation of estate planning and some of what I typically go through with a client during an initial estate planning meeting:

Part 1 – Last Wills & Testaments and Powers of Attorney
Part 2 – Basic Probate Avoidance Strategies
Part 3 – Joint Revocable Living Trusts

There are three fundamental and “foundational” estate planning documents that every single person age 18 and older should have: 1) a Durable Power of Attorney; 2) a Healthcare Power of Attorney; and 3) a Last Will & Testament. The two Powers of Attorney govern your affairs prior to your death, while the Last Will & Testament governs your affairs after your death.

Before Death

Generally speaking, as soon as a person turns 18 years old they no longer have a designated person to make decisions for them. That is why it is important, no matter if you are 18 or 80 years old, to have both a Durable Power of Attorney (DPOA) and Healthcare Power of Attorney (HCPOA) to designate an individual(s) to make decisions for you if you are unable to do so yourself.

You designate a person(s) to handle your financial affairs in a Durable Power of Attorney. Most DPOAs are very broad, giving the person you designated broad authority to handle your financial affairs – for instance, managing your bank accounts, paying your bills, managing your assets, filing your tax returns, etc. However, you can limit this authority if you wish to. Additionally, a DPOA can either be immediate or springing. An immediate DPOA is effective immediately, while a springing DPOA is effective only after you are determined to be incompetent or incapacitated and unable to handle your own financial affairs.

You designate a person(s) to handle your healthcare decisions in a Healthcare Power of Attorney. It is important to understand that, like the springing DPOA, a HCPOA is only effective if you are incapacitated and unable to make decisions for yourself; if you can make decisions for yourself, those decisions will control. Generally, a HCPOA grants your healthcare agent with a general authority to make healthcare decisions for you; for example, that you have shared your wishes with this person and that this person will honor those wishes and do what is in your best interests. However, typically some of the more “hot button” issues are covered specifically in the HCPOA. For instance, whether your agent may consent to mental health treatment, long term nursing home care, removing your feeding tube, and if you are pregnant, whether or not they may still make decisions for you.

Also, typically included in a HCPOA is a Living Will and HIPAA consent; although, these may be in separate documents as well. The Living Will is where you detail your wishes if you are in a coma, vegetative state, etc.; for example, whether or not you want every life saving measure taken to prolong your life or if you want the proverbial so-called “plug pulled.” HIPAA consent is where you consent to certain people having access to your medical records.

Without either or both of these Powers of Attorney, if you are determined to be incompetent or incapacitated and unable to handle your own affairs, a court will have to be petitioned to appoint someone to handle your affairs. This is time consuming, costly and the person appointed may not be the person you would have chosen to handle your affairs. Take for instance the Terri Schiavo case. Most people remember this case; it is where Terri Schiavo’s husband and parents argued for nearly 15 years on what she may or may not have wanted. Terri was in a vegetative state and her husband had petitioned the court to remove her feeding tubes, while her parents petitioned the court to keep her alive. Terri had no living will; therefore, it was up to a court to make the decision for her based on what they thought she would have wanted. It took 15 years! And, who knows if the court got it right. This is not the only case like this, it happens more often than you think. Save your family the trouble and burden of having to petition the court to make these decisions for you, contact a professional today to draft you the necessary Powers of Attorney.

After Death

Your Powers of Attorney will no longer be effective once you die. This is where your Last Will & Testament comes in and governs who handles your affairs (in some instances). I want to take this opportunity to clear up one of the biggest misconceptions I hear when it comes to Wills – A Will governs your estate, meaning that it details how your estate is going to be settled in probate, for instance, who is going to manage and administer your estate, who your estate is going to be divided among, who you want to be appointed guardian of any minor children, etc. The key word there was “probate.” Many people think that if you have a Will, you avoid probate. That is not true. Additionally, many people believe that all of your assets will be governed by or “go through” your Will when you die. That is also not true. In Part 2 of this series I will talk about the different strategies to avoid probate. And, if you implement one of these probate avoidance strategies, your Will will NOT control who inherits those assets when you die, the document you used to avoid probate will. This is very important to remember.

It is important for you to have a Will for many reasons. The three primary reasons for most individuals are: 1) you designate the person you want to administer your estate, 2) you designate the people or organizations that you want to inherit your estate (and how they inherit it) and 3) you designate the individuals you want appointed as the guardian of your minor children. If you do not have a Will, the court will have to designate a person to administer your estate and to be guardian of your minor children. This is not only time consuming and costly, the court may choose someone who you may not have chosen. And, the State, via its intestacy statute, will choose who will inherit your estate and when and how they inherit it. The intestacy statute is based on who the State thinks you would have wanted to inherit your estate if you had a Will. Again, this may not be the individuals you wanted to inherit your estate, and even if it was, you may have wanted to put some restrictions on and/or have some control over when and how they inherit it. The probate process can be long and costly enough with a Will, save your family the extra trouble and burden of having to probate your estate without a Will, contact an attorney today to draft your Last Will & Testament.

Conclusion

Any plan starts with a good and solid foundation, and that includes your estate plan. The estate planning documents that every person needs for a good and solid foundation is a Durable Power of Attorney, a Healthcare Power of Attorney and a Last Will & Testament. Until you have these, any other estate planning strategies may be fruitless and/or supported by a weak foundation. Make sure to check out Part 2 (Probate Avoidance) and Part 3 (Trusts) of this series when I post them. And, lastly, like with any topic I blog about, I am only scratching the surface of these topics, you must contact a professional in order to fully consider how these estate planning strategies will play out in your individual circumstances.

I hope this helps!

-Matt

 

© 2015 Matthew D. Brehmer and Crummey Estate Plan.