Estate Planning and Probate

The Estate Plan (The Wealth Plan)

What Is An “Estate Plan?” Many people think of “estate planning” as something that only the wealthy do to control their riches. The wealthy do preserve their assets through good planning. However, this is only a small portion of what estate planning is all about. An estate plan is the “plan” for how you own and manage your property today and in the future. Everybody wants to preserve the wealth which they have worked hard to create. This means protecting it from unnecessary taxation at death and ensuring that it finds its way to the proper recipient. However, it is even more important to structure your affairs to protect your wealth during your life. For example, you must select individuals to handle your affairs if you are incapacitated by illness or injury. Estate planning involves planning for life, for the growth of your children, for your retirement and for your incapacity and the incapacity and special needs of others that you care about. As you can see, estate planning has more to do with living than with dying. That is why it is really a “Wealth Plan.” Almost all estate plans or Wealth Plans include a will and a durable power of attorney. More complex plans utilize trusts, family holding companies and other tools. Estate plans and Wealth Plans range from the very simple to the extremely complex. Your wealth does not determine the complexity of your plan. Rather, the complexity of your plan depends on your desires and needs. Some very wealthy people have relatively simple plans. Some young people of modest means with small children have rather complex plans. What is important is that you have a plan that does what you want it to do.

Do I Need An Estate Plan or Wealth Plan? You need a Plan if:

You want to provide for your children.

You want to choose the guardian for your children.

You own any real property.

You are married or divorced.

You have any wealth (bank accounts, stocks, etc.).

You want to choose the person to handle your affairs while you are incapacitated.

If you are a single adult.

The Durable Power of Attorney

What Is A Durable Power Of Attorney And Why Do I Need One? A durable power of attorney designates a person to act on your behalf if you become incapacitated. A durable power of attorney can allow the individual you appoint as your “attorney-in-fact” or “agent” to act on your behalf at any time or it can give that person the power to act for you only when you are incapacitated. It is absolutely essential that you have a durable power of attorney if you are involved in an accident, become ill or are otherwise incapacitated. Without a durable power of attorney, your family will not be able to access your medical records, open your safety deposit box, file a tax return, access your bank account, sell or deal with your property or hire a lawyer to protect you or pursue your claims. Many people think that they do not need a durable power of attorney because they have a joint bank account. However, how many other things in your life are not established for joint access? How many things require your signature? Incapacity can be much more disruptive than death. Indeed, once you have passed away, your family can immediately begin to “clean up” your affairs. However, when you are incapacitated, your personal affairs are placed “on hold” at the very time when your family needs uncomplicated solutions. A durable power of attorney solves almost all of these problems. Single people – old and young – are at the greatest risk of not having a durable power of attorney.

Is My Durable Power Of Attorney OK? If you already have a durable power of attorney, then it may be just fine, but not if it was created before 2012. Specifically, Alabama’s Durable Powers of Attorney Act was last amended in 2011. If your Power of Attorney was created before 2012, is more than a few years old or your affairs have changed since it was prepared, then you should have it reviewed. Furthermore, durable powers of attorney seldom have “expiration” dates — although some do. Does yours? What matters is whether your durable power of attorney (a) is valid and (b) accomplishes your goals. Your attorney-in-fact’s powers must be specifically stated in the durable power of attorney — nothing should be assumed. If your durable power of attorney is only a page long, then it is probably not comprehensive. My “basic” Power of Attorney instrument is 3 pages long, single spaced in small type. Even if you have a “good” durable power of attorney, then you should still update it periodically; particularly if anything has changed in your life such as a marriage, divorce or the birth or death of a relative. Similarly, the durable power of attorney is an important part of your wealth plan — a plan that must fit together so that there are no conflicts or omitted issues. Consequently, if your entire plan was not prepared by the same attorney, then you should consider getting a new plan which includes a new durable power of attorney.

What Should I Do With My Durable Power of Attorney? Place it somewhere safe and tell your attorney where it is. Do not give it to your attorney-in-fact. Your durable power of attorney designates someone to handle your affairs if you are incapacitated. If your attorney-in-fact or agent needs to complete a transaction on your behalf, then he or she must provide a copy of the document to the financial institution or other entity in question. Some institutions will only accept an original. However, you should always attempt to provide a photocopy first. Restated, only provide an original of the durable power of attorney after the institution or individual in question has refused to accept a photocopy. You can revoke your durable power of attorney by destroying all originals and copies of the durable power of attorney and notifying all prior recipients in writing that you have revoked it. If you have allowed your attorney-in-fact or other family members to have copies of your durable power of attorney, then it is impossible to know with any certainty where all of the copies are. Consequently, the better practice is to control who has access to your durable power of attorney. You should only tell a few carefully selected individuals where you keep your durable power of attorney. Do not distribute your durable power of attorney in advance – your attorney-in-fact can provide copies of your durable power of attorney to third parties if and when you are incapacitated.

The Advance Medical Directive

What About Living Wills? You need one! Most states, including Alabama, have statutes which allow you to make many of your medical decisions in advance — such as directing your physician how to react if you become ill or are injured and are in a permanent vegetative state or “coma.” Some people call this document a “living will.” However, in Alabama the instrument is correctly referred to as an “advance medical directive.” Regardless of what your preferences are with respect to how your family and physicians respond to certain medical conditions, you may want to execute an advance medical directive so that there will be no confusion about what you want. The advance medical directive also authorizes your representative to see your medical records. Consequently, everyone over 19 years of age needs one. An advance medical directive is a legal instrument and must meet certain criteria in order to be enforceable. Consequently, I generally recommend that you have an attorney prepare your advance medical directive.

Can I Contradict My Advance Medical Directive? If you are conscious, then your physician will just talk to you and do what you say. Nobody is going to read your Advance Medical Directive unless you are unconscious.

What Should I Do With My Advance Medical Directive? You should provide a copy of your advance medical directive to the hospital whenever you are admitted for treatment. Always attempt to provide a photocopy of the document rather than an original. Furthermore, make sure that your family members know where you keep your original advance medical directive. You can revoke your advance medical directive by destroying all originals and copies of the document and giving written notice to all prior recipients of your advance medical directive. Notwithstanding the forgoing, the better practice is to execute a new advance medical directive that expresses your new wishes and provide a copy of the new directive to every individual or entity who received a copy of your previous advance medical directive.

The Will

What Is A Will? A will is a document that tells your family and the courts how to distribute your “probate estate” when you die.

What Is A “Probate Estate?” Do I Have More Than One Type Of Estate? Yes. The law divides your assets into two legal categories – the probate estate and the non-probate estate. The probate estate is all of your property that passes by means of your will. The non-probate estate transfers when you die regardless of what your will says and is not part of the probate process. The non-probate estate includes all life insurance, annuity contracts, pension plans which include 401(k), IRA and similar arrangements and most “joint” property. In order to control who will receive any non-probate assets, you must complete designation forms from each of the entities controlling those non-probate assets.

Does Everybody Need A Will? Yes. The will is the cornerstone of your estate plan. You need a will even if you own most (or even all) of your property “jointly” or otherwise as a non-probate asset. It is essentially impossible to “pass” all of your property outside the probate process — you always leave something out. Furthermore, there are many things which you simply cannot do by any means other than a will.

Is My Will OK? Most “short” or simple wills are effective to pass the property to the people listed in them. However, a simple will may fail to achieve all of your goals. There are many pitfalls in the law which a skilled lawyer can “draft around” to make the administration of your estate more effective and economical. Most simple wills do not take advantage of these opportunities. For example, your will can waive the requirement of “bond” which will save your family hundreds, or even thousands, of dollars. A “simple” will may or may not include this and many other equally important provisions. In any event, my “simplest” will is nine pages single spaced in small type – i.e. it takes me nine pages just to address all of the “basics.” Consequently, when I see a will consisting of only a few double spaced pages, I am certain that it does not address many of the very important matters.

What Should I Do With My Will? Give it to your lawyer or put it in a safe place at home or work. There is only one original of your will. Place this important document in a safe location. Do not put your will in a safety deposit box because it is difficult to access a safety deposit box following someone’s death. You should select a location at your home or office to store your will. One good location for storing your will is in your freezer. Yes, your freezer. The inside of your freezer will most likely be just fine even if your house burns down and I doubt that anyone will steal your freezer. Consequently, put your will in a sealed envelope, place the envelope in a sealed plastic bag, make sure that there is no air in the plastic bag and put the bag in the freezer. Regardless of where you store your will, tell your personal representative and other close family members where they can find your will when you die. If your will is stapled, never unstaple it. If the judge can see that the staples have been removed, then he or she may question whether someone has “substituted” some of the pages. If you need to make a photocopy of a will that has been stapled, then simply fold the pages back while placing each individual page on the photocopier. Never mark on your will. If you make any marks on your will, then this could void all or part of your will. If you need to make some notes to yourself, then make a photocopy of your will and then make any notes on the photocopy. If you decide to revoke your will, then the best thing to do is replace it with a new will. If you decide to revoke your will without replacing it – something which I do not recommend – then the law allows you to revoke it by destroying it (tearing it up) or marking each page as “revoked;” you should have two witnesses to your act of revoking your will.

How Does My Will Affect My Children? A good will states who will be the guardian of your minor children. If you have young children, then your estate plan will include a trust and designate someone to manage the money for your children until they reach the age which you selected for turning the money over to them. The trust will also designate the appropriate uses of those funds

Trusts

How Does A Trust Work? It is a management agreement for handling specific property. All trusts have a settlor (creator), a trustee (manager) and beneficiaries (those who get the benefits). The settlor, through the trust document, tells the Trustee how to manage the property (money and other things) in the trust. The law requires the trustee to follow those directions. For example, a trust might require the trustee to only spend money for traditional education of the settler’s children. Parents often use trusts to hold money to pay for a child’s college education following the parent’s death. The flexibility of a trust is limited only by your imagination and the skill of your attorney.

What Is A Trustee? A trustee is the person you designate to manage the trust property; it can even be you. The law requires the trustee to follow your directions about how to handle the trust property.

What Is A Testamentary Trust? A testamentary trust is actually part of your will. Because the trust is part of your will, a testamentary trust does not technically come into existence until your will is probated. Because a testamentary trust comes into existence as part of the probate process, the probate court has the right to supervise a testamentary trust and the trust is a public record which anyone can read at the courthouse.

What Is An Inter-Vivos Trust? An inter-vivos trust is created outside of your will – the trust is “created” when you sign the documents.

What Is A Living Trust? The term “living trust” generally refers an inter-vivos trust which you create during your life for your own benefit. You are the settlor, trustee and beneficiary. You can change the “rules” at any time and can do whatever you want with the property; you can even revoke the “living trust.” However, when you die, the trust becomes irrevocable and the new trustee then manages the property for the benefit of your beneficiaries. You can use a living trusts to transfer property at death outside of probate. This is why many lawyers – and unlicensed swindlers – advertise living trusts as a way to avoid the costs of probate. However, living trusts have significant drawbacks. For example, creating and maintaining the existence of the trust is not free. The cost of probating an estate in Alabama is almost always less than the cost of creating and maintaining a living trust. Moreover, even if you have a living trust, your family will probably still probate your estate to close out your other affairs. I seldom use “living trusts” because they usually cause more harm than good and always create otherwise avoidable recurring expenses for you now (and income for your attorney). Notwithstanding the foregoing, I do use a living trusts when they are appropriate.

Choosing Between A Testamentary Trust Or An Inter-Vivos Trust. Estate planners generally use two types of trusts: testamentary trusts and inter-vivos trusts. I seldom use testamentary trusts because (a) you cannot change a testamentary trust without executing a new will, (b) a testamentary trust is part of the probate process and, therefore, your family must probate the will to “create” the testamentary trust, (c) the testamentary trust is technically subject to court supervision forever and (d) the testamentary trust is filed in the public records where anyone can read it. I prefer inter-vivos trusts because (a) an inter-vivos trust comes into existence immediately, (b) an inter-vivos trust does not rely on the probate process to come into existence, (c) an inter-vivos trust is generally free from court supervision and (d) you can change your inter-vivos trust without changing your will. The only real disadvantages of an inter-vivos trust are the recurring annual activities and costs necessary to “maintain” the trust prior to your death and the inability to protect property from Medicaid in some circumstances. I do, however, use testamentary trusts when the client needs a “medicaid protection” or “special needs” trust or if the client specifically requests a testamentary trust.

What Is A “Crummey” Trust? A Crummey Trust is a special kind of trust designed to reduce estate taxes. I discuss Crummey Trusts in greater detail in the section on tax strategies.

Why Do I Need A Trust For My Children? If you want certain property – money, insurance proceeds and other wealth — to be used to take care of your children following your death, then it is a good idea to segregate that property and designate it solely for that use. If you give this property outright to your surviving spouse or some other family member, then there is no guaranty that the money will be used to benefit your children. Furthermore, if you give the property outright to a family member, then any creditor of that family member can take the money which you intended to benefit your children. If, however, you put the property in a properly designed trust, then nobody can take that property from your children. The money will be there when your children need it. A trust is the only way to guaranty this result.

What Is A Special Needs Trust? If one or more of your intended beneficiaries (a) are disabled, (b) have any special needs or (c) are expected to apply for Medicaid, then you need to address this possibility with a special needs trust. A special needs trust is a testamentary trust (it generally cannot be inter-vivos) which provides the beneficiary with support in addition to any Medicaid or similar public assistance.

Estate Taxes

Will My Family Pay Estate Tax? Throughout your life, the state and federal governments tax every dollar you earn. Notwithstanding this, the government returns for a “second bite” when you die. The federal estate tax rate is 40%. However, most citizens receive a credit which essentially provides for no tax against the “exemption amount.” Congress changes the exemption amount from time to time. Twenty years ago it was $600,000. Today it has risen to $5,450,00. If your net worth is less than five million dollars, then you may still pay estate tax. Specifically, the IRS determines the size of your estate by adding the value of everything that transfers because of your death. This includes most insurance policies as well as retirement plans. Do not confuse the estate tax with income tax. Your accountant may have told you that there will be no income tax on your life insurance proceeds. This does not have anything to do with whether or not there will be an estate tax on those insurance proceeds. Consequently, many people, regardless of how modest they think their estates are, do have an estate tax problem. Furthermore, even if you do not have an estate tax problem now, you may have one before you die and your estate plan is put to the test by the IRS. The good news is that if you do have an estate tax problem, then you can almost always restructure your estate to realize substantial tax savings — often hundreds of thousands of dollars in savings. However, you must plan in advance in order to take advantage of these opportunities to reduce your estate taxes and increase the amount which your family will receive.

Can You Guaranty Me A Tax Benefit? A skilled attorney will use techniques designed to effectively utilize the federal “unified credit” and otherwise reduce your gross estate. However, all “tax planning” of any nature whatsoever is at all times subject to acceptance or disallowance by the Internal Revenue Service and any applicable state departments of revenue. Restated, no lawyer can guaranty any particular result. The best he or she can do is prepare your estate and trust materials based on his or her current understanding of the law and the rulings and positions of the Internal Revenue Service, applicable state departments of revenue and judicial and administrative decisions with respect to the same. All of the forgoing may change at any time and, therefore, your estate plan may or may not ultimately provide your family with the intended result. Consequently, you must periodically review your tax planning with your attorney. Finally, you must accept the risks associated with adopting any tax reduction strategy.

Planning For The Estate Tax. If you tell your lawyer that your and your spouse’s combined estate is valued at less than $5,450,000, then the lawyer will probably not consider any tax consequences when planning your estate. If you tell your lawyer (a) that your and your spouse’s combined estate is valued at more than $5,450,000 or (b) that either you or your spouse or one of your beneficiaries is not a United States citizen, then your attorney should discuss tax reduction strategies with you. However, the decision to employ any strategy is ultimately yours to make. Restated, you are responsible for directing which tax strategies, if any, you want your lawyer to incorporate into your estate plan. Although I focus on $5,450,000 above, if two U.S. citizens are married, then effective basic planning should allow them to pass $10,900,000 to the next generation with any Federal Estate Tax.

Tax Strategies

What Is An Irrevocable Life Insurance Trust? An irrevocable life insurance trust removes the value of a life insurance policy from your gross estate. This is a particularly valuable technique when your gross estate exceeds $5,450,000 because of substantial life insurance. Specifically, you will recall that the gross estate (the estate on which you are taxed) includes the value of everything that passes by reason of your death. This amount includes the death benefit value of any life insurance which you “own.” For example, a young couple of otherwise modest means, but which has purchased substantial life insurance, can easily exceed the $5,450,000 threshold. If you take some of the value of your life insurance and move it out of your gross estate, then the estate tax problem essentially disappears. One way to do this is to move some of your life insurance into an irrevocable life insurance trust for the benefit of your children. Once you transfer the life insurance policy into the irrevocable life insurance trust, then the death benefit value of that policy is no longer included in your gross estate — and, therefore, not subject to estate tax. Upon your death, the life insurance policy pays into the trust where it is held for the benefit of your children (or spouse, as the case may be). Restated, you can remove the value of the life insurance policy from your estate while the value — the death benefit — still goes exactly where you had originally intended. Although lawyers use this technique for clients of all ages and all circumstances, it is most often used for a family with minor children.

What Is Planned Gifting? If your estate exceeds $5,450,000 or the combined estate for you and your spouse exceeds $10,900,000, then you will generally be taxed on the amount over those limits. You can avoid this tax by moving wealth out of your name and into the name of others — most often your children or some other member of your “next generation.” Specifically, you want the IRS to agree that you did not own the property in question on the day of your death. The simplest way to do this is through what is known as “planned gifting.” The Internal Revenue Code currently allows every U.S. citizen to transfer up to $14,000.00 per year, per recipient without any gift tax. For example, you could give $14,000.00 to your child and $14,000.00 to your child’s spouse. Your spouse could do the same thing. Consequently, if you are married and your child is married, then you can effectively move $56,000.00 per year to your child. Obviously, you can move a meaningful amount of money out of your personal estate by giving it to your intended beneficiaries in this manner. However, “planned gifting” is not the best solution for everyone. Indeed, you may not be ready to part with your money. Moreover, the wealth in question might not be “in cash” — i.e., how do you give “part” of a boat to your children? Finally, you may be willing to give the funds to a child from a legal standpoint, but would like to maintain some control over the property. For example, you might want to control the investment of those funds. Two ways to exercise a greater degree of control are the Crummey Trust and the family limited liability company — I discuss both of these tools below.

What is a “Crummey” Trust? A Crummey Trust is a special kind of trust designed to reduce estate taxes. Specifically, if you give property to a child in trust, then the IRS generally disregards the gift – i.e. the IRS treats the property as if it is still yours until you die – so the IRS can tax the property as part of your estate. The IRS does this because you still control the property while it is in the trust — i.e., you are the trustee. In a ruling for the Crummey family, the IRS agreed to treat property transferred into a trust with temporary withdraw powers as a “complete gift” and, therefore, not taxed as part of the donor’s estate. We can use this type of trust to remove property from your estate for estate tax purposes. However, because you are the trustee, you can control the property until you die. This is a very powerful tool. We sometimes use this type of trust to hold life insurance on a parent’s life, but payable to the trust when the parent dies.

Family Limited Liability Companies. Family limited liability companies are the modern day equivalent of family limited partnerships — a perfectly legal tax avoidance technique which lawyers have used for years. The mechanics of this technique are complex, but the concept is relatively simple. If you have an asset which is not easily divisible (such as a house) or which you would like to continue to control (such as a stock portfolio), then you create a family holding company and place the asset in the company. The family holding company owns the asset. Instead of transferring part of the asset each year to your children in $14,000 increments, you transfer to your children an “ownership interest” in the family holding company with a “tax adjusted” value of not more than $14,000. Each time you transfer an ownership interest to your children, you can designate whether the ownership interest in question will be a voting interest or a non-voting interest. By transferring a non-voting interest, you will maintain voting control over the family holding company. Restated, as time passes, your children will own more and more of the family holding company, but none of their interests will have any “vote.” Consequently, regardless of how much of the family holding company your children own, you will still have 100% of the votes. Because you are the only voting member of the family holding company, you will be able to control the investments. If the family holding company’s primary asset is stock, then you will make all investment decisions. If the family holding company’s asset is a vacation home, then you will have the ability to sell the vacation home and invest the funds or replace it with a new vacation home or with an entirely different type of asset. Moreover, although your children will have some ownership in the family holding company, you can still enjoy most, if not all, of the financial benefits by choosing to pay yourself a salary as the manager of the family holding company or “loan” money to yourself from the company. Your salary or loan may be less than, the same as or even more than the income of the family holding company during the course of the year in question. Restated, you can actually remove some of the assets from the family holding company by “spending capital” to pay your salary or make the loan. In any event, this is an extremely flexible arrangement and one which has been in use for many, many years. There are also asset protection benefits associated with this arrangement.

Insurance

Why Is Insurance Part Of An Estate Plan? Your estate plan will not matter if you lose all of your wealth to a disaster, accident, illness, theft or lawsuit. Life has risks. Wise people evaluate their risks and insure against them. Don’t buy too much insurance or too little – make sure that your coverage amounts and deductibles are “just right.”

Do I Need Health Insurance? One of the most common causes of bankruptcy is unpaid medical bills. Furthermore, when you die, the costs of your final illness or injury will come out of your estate unless you have health insurance. Furthermore, Federal Law now requires everyone to have health insurance.

Do I Need Disability Insurance? If your family depends on your income, then you must consider purchasing disability insurance. If you do not earn an income, or if you do not need to earn an income, then you may not need any disability insurance. However, everybody except the very wealthy and the retired should consider disability insurance.

Do I Need Long Term Care Insurance? The costs of long term care can bankrupt a family and leave an estate essentially empty. How will you address the expenses of your possible long term medical care needs? Each person’s needs are different. Long term care insurance is an absolute necessity for many people; others accept the risk of long term care costs. Everybody except the very wealthy must at least consider long term care insurance.

Do I Need Life Insurance? If your family is in better financial shape with you alive than they are with you dead, then you need life insurance. You can purchase life insurance with many different features, durations and benefits. The types of insurance and the coverages which you may need will vary substantially based on your circumstances.

Do I Need Auto Insurance? Alabama requires all drivers to carry liability insurance for their automobiles. A lawsuit arising from a car wreck can bankrupt you. If you are killed in the wreck, then the lawsuit may “empty” your estate leaving nothing for your family. The costs associated with replacing or repairing a wrecked vehicle can cause similar financial problems regardless of whether you are dead or alive following the wreck. The solution is to review your auto coverage with your insurer.

Do I Need Homeowner’s Insurance? If you have a mortgage on your home, then the bank requires you to maintain homeowner’s insurance. Even if you own your home outright, you probably cannot absorb the loss caused by a fire or a storm. Your homeowner’s insurance is also your protection from a thief stealing your belongings. Your estate plan will not matter if all of your stuff has been stolen or destroyed. Finally, your homeowner’s insurance provides liability coverage for a variety of claims (lawsuits) against you. You need to carry sufficient homeowner’s insurance coverage.

Do I Need A Personal Articles Floater? Your homeowner’s insurance does not provide coverage for the loss of, or damage to, everything you own. Make a list of all of your significant possessions like jewelry, furs, artwork, antiques, etc. Review this list with your insurance professional. If any of these items are not covered by your homeowner’s insurance, then you should consider purchasing a “personal articles floater” policy.

Do I Need Umbrella Coverage? Umbrella Coverage is a liability policy of insurance which provides additional coverage that is “added to” the liability limits of your homeowner’s and auto coverage. Some “umbrellas” also provide coverage for claims which are not covered by your homeowner’s or auto coverage. If your risks exceed your current limits of liability, then you should consider purchasing umbrella coverage. There is no magic formula for deciding how much umbrella coverage you may need. However, I usually recommend that you purchase an umbrella policy equal to your net worth.

What Do I Do Now?

What Should I Do Now? Answer the following questions and make an appointment to see your attorney: (1) Identify your immediate family and all living parents and siblings, (2) Identify every insurance policy on your life or of which you are a beneficiary, (3) Identify every pension plan you are a beneficiary of including the sponsor of the plan and the details of the benefits, (4) Identify every bank account, savings account, certificate of deposit and brokerage account you have, (5) Identify every trust that you are a settler, trustee or beneficiary of and (6) Identify every privately held company or organization which you own an interest in. Once you have answered the questions, it is time to call your lawyer. If you do not have one, then you can “test” a potential lawyer by asking questions. Pay close attention to the answers you receive from the lawyer; are they general or does the lawyer use specific examples to explain his or her recommendations? Experienced lawyers are happy to provide you with a detailed example of how they have dealt with a specific situation before. “Pretenders” are short on details and long on reasons why they cannot give details.