California Probate - Law Offices of Janet Brewer Blog

What Estate Planning Documents Should I Have when I Retire?

“Few retirees have all of these documents that are crucial to their golden years — especially during a pandemic.”

Research shows that most retirees (53%) have a last will and testament. However, they don’t have six other crucial legal documents.

Money Talks News’ recent article entitled “6 Legal Documents Retirees Need — but Don’t Have” says in fact, in this pandemic, 30% of retirees have none of these crucial documents — not even a will — according to the 20th annual Transamerica Retirement Survey of Retirees.

In addition, the Transamerica survey found the following among retirees:

• 32% have a power of attorney or medical proxy, which allows a designated agent to make medical decisions on their behalf
• 30% have an advance directive or living will, which states their end-of-life medical preferences to health care providers
• 28% have designated a power of attorney to make financial decisions in their stead
• 19% have written funeral and burial arrangements
• 18% have filled out a Health Insurance Portability and Accountability Act (HIPAA) waiver, which allows designated people to talk to their health care and insurance providers on their behalf; and
• 11% have created a trust.

The study shows there is a big gap that retirees need to fill if they want to be properly prepared for the end of their lives.

The coronavirus pandemic has created an even more challenging situation. Retirees can and should be taking more actions to protect their health and financial well-being. However, they may find it hard while sheltering in place.

Now more than ever, seniors may need extra motivation and support from their families and friends.

The Transamerica results shouldn’t shock anyone. That is because we have a long history of disregarding death, and very important estate planning questions. No one really wants to ponder their ultimate demise, when they can be out enjoying themselves.

However, planning your estate now will give you peace of mind. More importantly, this planning can save your heirs and loved ones a lot of headaches and stress, when you pass away.

Talk to an experienced estate planning attorney today to get your plan going.

You can read more about how our process works, how we can make sure we are a good fit for your needs, and how to get started today right here.

Reference: Money Talks News (Dec. 16, 2020) “6 Legal Documents Retirees Need — but Don’t Have”

Does My Adult Child Really Need a Will?

“You may have spent part of the pandemic updating your estate plan and getting your financial house in order. However, did you ever stop to think about whether your adult child needs a will?”

Most people believe their adult children do not require a will, until they get married or have a child of their own. However, realistically, if your adult children have any assets in their name, they should have a will.

Forbes’ recent article entitled “Does Your Adult Child Need A Will?” says that most of us don’t want to think about a will for our children because it requires us to think about our child’s death.

Most people cannot even think about their own mortality, let alone their child’s death. However, for most young adults, a simple will and updated beneficiaries on retirement accounts and life insurance policies (perhaps through their job) is all that’s required to transfer their property, in case they die unexpectantly.

The child will need to designate individuals to receive their assets on their death (like siblings or other family members), and they must name an executor, in many cases a parent or sibling.

If you have your children sit down and draft a will with the help of an experienced estate planning attorney, you should also have them sign a health care proxy and power of attorney. The health care proxy designates a person, usually a family member, to make health care decisions, in the event they cannot make them for themselves. The power of attorney will let a named agent access to the children’s financial assets, in the event they are incapacitated.

It is not uncommon for parents to set up bank accounts for their children, and their grandparents may have also given the children financial assets over the years. Even if your children have not received any financial gifts, they may be working and saving money in their own accounts. These are all situations in which children should have a will.

This will probably be your children’s first experience with estate planning, but it will not be the last. As their assets grow, the planning will become more complex.

Moreover, if your children have families, that will also change the plan. Beginning the estate planning process now also starts their education as to what they should know to properly manage the assets they’ll inherit from you and eventually leave for their own children. You can contact our office today to schedule your consultation.

It also introduces your children to your team of advisors so if something happens to you, your children already know where to go for assistance.

Reference: Forbes (Dec. 21, 2020) “Does Your Adult Child Need A Will?”

Should I Create My Own Estate Plan?

“The ongoing coronavirus pandemic has pushed many people to make long-delayed decisions about estate planning. Many people will try the do-it-yourself route via various websites or books. Internet DIY websites make it easy to download forms, but there are mistakes people make when they try do-it-yourself estate planning.”

US News & World Report’s recent article entitled “Do-It-Yourself Estate Planning Mistakes” provides some issues that do-it-yourself estate planners might encounter and why it is best to consult an experienced estate planning attorney.

What are the Right Questions to Ask? Completing a simple and straightforward form—like a beneficiary designation for your IRA— is one thing, but what about tax consequences, probate law, new legislation and court procedures? Are you ready to take these on? The trick is that you may not know what you don’t know. That’s why it’s money well-spent to employ the services of an experienced estate planning attorney.

Is My Situation Complex? Likewise, you may have property and assets all over the country (or world) that require expert advice. You must be certain that your planning, tax planning and financial planning all work together because they’re all interrelated. If you only work on one of these areas at a time, you may create complications in another area and unintentionally increase your expenses or taxes. It can also create headaches and expense for your heirs. If you have a child with special needs, a blended family, or want to control how and where a beneficiary spends your money, a cookie cutter approach won’t do. Instead, you should see an experienced estate planning attorney.

What are the Probate Laws in My State? Estate planning laws and taxes are different in each state.  Your state will have different rules and legal procedures for creating and administering an estate. There are many different state laws that govern inheritance taxes. There are 17 states plus DC that tax your estate, inheritance or both, and the tax laws can affect your situation when planning. Eleven states plus DC have only an inheritance tax. One state taxes both inheritances and estates.

If you mess up your estate planning documents, if could cause significant problems for your family. You best bet is to work with an experienced estate planning attorney in your state. Contact our office today to schedule your consultation.

Reference: US News & World Report (Dec. 18, 2020) “Do-It-Yourself Estate Planning Mistakes”

How to Plan for a ‘Black Sheep’ Kid in Will

“There are several myths about how estates must be distributed that can lead to lots of worry about what will happen to a “wild child” in the future and stress about family dynamics.”

Every family has unique circumstances as far as wealth, financial planning, and plans for the future. Therefore, it is critical that you consider your individual beneficiaries’ circumstances when it comes to estate planning.

Kiplinger’s recent article entitled “Estate Planning for ‘Black Sheep’ Beneficiaries” explains that this may take the shape of a child with a substance abuse issue, a lack of financial acumen and responsibility, or a mental illness. You also may want to reward certain behaviors in the future. All these situations can be addressed thoughtfully and effectively in your estate planning documents with the help of an experienced estate planning attorney. Let’s dispel some of the common myths surrounding these issues:

Myth #1: You are required to split your estate evenly among your children. Disinheriting a beneficiary happens a lot. It can occur for a variety of reasons that have nothing to do with the disapproval of a potential beneficiary’s lifestyle choices. Regardless of the reason for disinheriting completely or making unequal distributions, it’s best to discuss this in your estate documents or in a separate letter. Give the reasons for your decision to head off any possible claim against the estate or even just hard feelings among family members.

Myth #2: Once you’ve disinherited your black sheep, it’s irreversible. Not so. You should review your estate planning choices regularly because situations change (hopefully for the better), and you can revise your estate plan to provide incentives for your beneficiary to continue making progress.

Myth #3: You have no control of the issue after you pass away. While there’s no direct control after you die, you can, however, make specific instructions in your trust to reward and motivate your black sheep to behave in a certain fashion. You can also treat the share of inheritance for one beneficiary differently than others. Therefore, a financially responsible child may be allowed to access such a share of the estate in one lump sum; but you create a trust for the second child who has issues.

Myth #4: Trusts are a huge hassle. Certain trusts permit you to name a person to help your beneficiary manage their inheritance. This can be a family member or friend, as well as a professional trustee who will assume the administrative responsibilities of a trust.

Don’t avoid the subject of estate planning. Work with an experienced estate planning attorney and discuss the options available. You can read more about how our process works, how we can make sure we are a good fit for your needs, and how to get started today right here.

Reference: Kiplinger (Dec. 8, 2020) “Estate Planning for ‘Black Sheep’ Beneficiaries”

Will I Get A Bill as My Inheritance?

“Debts, just like assets, are considered part of a person’s estate. When that person passes away, their estate is responsible for paying any and all remaining debts. The money to pay those debts comes from the asset side of the estate.”

When someone dies and leaves debts, you may ask if you have any personal liability to pay them. The answer is typically no, even though those debts don’t automatically disappear. However, there are situations in which you may have to address issues with a loved one’s creditors after they are gone, says KAKE’s recent article entitled “Can I Inherit Debt?”

The responsibility for ensuring the estate’s debts are paid, is typically that of the executor. An executor performs several tasks to wrap up a person’s estate after death. They include:

• Obtaining a copy of the deceased’s will, if they had one, and filing it with the probate court
• Notifying creditors and other entities of the person’s death (like the Social Security Administration to stop benefits)
• Creating an inventory of the deceased’s assets and their value
• Liquidating assets to pay off any debts owed by the estate; and
• Distributing the remaining property to the individuals or organizations named in the deceased’s will (if they had one) or according to inheritance laws, if they didn’t.

In terms of debt repayment, executors must notify creditors who may have a claim against the estate. Creditors are given a set period of time to make a financial claim against the estate’s assets for repayment of debts. It’s not that uncommon for a disreputable creditor to attempt to get paid by the deceased’s relatives.

Any assets in the estate that have a named beneficiary, such as a life insurance policy, a 401(k), individual retirement account, payable on death accounts or annuity, would be transferred to that beneficiary automatically and cannot be touched by creditors.

You typically don’t inherit debts of another like you might inherit property or other assets from them. Thus, if a debt collector tries get money from you, you’re under no legal obligation to pay.

However, if you cosigned a loan with the deceased or opened a joint credit card account or line of credit, those debts are legally yours, just as much as they are the person who died. If they pass away, you’d be solely responsible for repaying them.

You should also know that you may be liable for long-term care costs incurred by your parents, while they were alive. Many states require children to cover nursing home bills, although they aren’t always enforced.

As for spouses, the same rules of debt responsibility apply. However, for debts that are in one spouse’s name only, it’s important to understand how living in a community property state can impact your liability for marital debts. If you live in a community property state (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin), debts incurred after the marriage by one spouse can be treated as a shared financial obligation.

Reference: KAKE (December 2, 2020) “Can I Inherit Debt?”

How Does the Court Choose an Executor if a Will Isn’t Available?

“An essential part of estate planning is selecting someone to represent you after your death in the management of your estate. This personal representative is also known as an executor, or executrix, if you choose a woman as your personal representative.”

An executor is the person who’ll manage your estate by protecting your assets, paying your debts and distributing the remaining property according to the terms in the will. But Programming Insider’s recent article, “Role of the Court When There is No Will For an Estate, asks “what would happen if someone dies without a will and, therefore, without appointing a personal representative?”

This is known as dying “intestate.” When it happens, the probate court must decide who will act as the estate’s administrator or personal representative. The judge’s decision will be based on state law, which will say how to prioritize potential fiduciaries in an administrator’s appointment. Every state has a prioritized list of preferred executors, and some states offer detailed guidance, like Oklahoma, which has a prioritized list. If more than one person is equally entitled to be appointed, a court has the option to appoint one or more executors.

The probate court has the final decision as to who will serve as the estate’s administrator or personal representative, even including a person who is named as executor in a will or is entitled to be chosen as a valid executor. The court will award authority to an administrator and will issue letters of administration or letters of testamentary. This authorizes the person to serve as an estate’s personal representative. Some people who might otherwise be entitled to serve as an executor may be disqualified based on state law. Here are some of the factors that a judge may consider when disqualifying a potential executor:

• Age. An executor must be an adult, who is at least 18 years old. However, some states require the minimum age of 21.
• Criminal History. Some states don’t permit someone who’s been convicted of a serious crime to serve as the fiduciary representative of a decedent’s estate. Other states only require a potential executor to notify the court of any felony convictions.
• Residency. This may be a factor in a person’s ability to serve as a personal representative. Some states let nonresidents serve in some circumstances. Some let nonresidents serve, if it’s a close relative. Finally, some other states require a nonresident executor to post a bond or use an agent within the state to process services and the court’s communication.
• Business Relationship. There may be state laws as to who may be an executor if the decedent was an active member of a partnership; and
• Citizenship. It also may be difficult for a noncitizen to serve as an estate’s personal representative.

Generally, probate judges have a lot of latitude and discretion on this selection.

If you have any questions about probate or your current estate plan, please call or email us today.

Reference: Programming Insider (Nov. 9, 2020) “Role of the Court When There is No Will For an Estate

What are the Biggest Estate Planning Mistakes?

“Taking a few simple steps now can potentially help save your beneficiaries thousands in legal fees and taxes.”

One of the largest wealth transfers our nation has ever seen is about to occur, since in the next 25 years, roughly $68 trillion of wealth will be passed to succeeding generations. This event has unique planning opportunities for those who are prepared, and also big challenges due to the ever-changing legal and tax world of estate planning.

Fox Business’ article “5 estate planning disasters you'll want to avoid,” discusses the biggest estate planning errors to avoid.

Failing to properly name beneficiaries. This common estate planning mistake is easily overlooked, when setting up a retirement plan for the first time or when switching investment companies. A big advantage of adding a beneficiary to your account, is that the account will avoid probate and pass directly to your beneficiaries.

Any account with a properly listed beneficiary designation will override what is written in your will or revocable living trust. Therefore, you should review your investment and bank accounts to make certain that your beneficiaries are accurate and match your intentions.

Naming a minor as a beneficiary. This can be a problem, if they are still minors when you die. A minor won’t have the legal authority to take control of inheritance or investment accounts until they reach the age of 18 or 21 (depending on state law). When a minor receives an asset as a beneficiary, a court-appointed guardianship will be created to supervise and manage the assets on behalf of the minor. To avoid this mistake, you can name a guardian for the minor child in your will.

Forgetting to fund a trust. Creating a trust is the first step, but many people don’t properly fund their trust after it’s established.

Making a tax mess for your heirs. A significant advantages of passing on real estate or other highly appreciated investments or property, is that your beneficiaries receive what is known as a “step-up” in basis, so that they aren’t responsible for any income taxes on the appreciated assets when they are received. The exception is when inheriting retirement accounts, such as 401k’s and traditional IRAs. Except for a surviving spouse, inheriting a traditional IRA or 401k means that you are now responsible for the taxes owed. With the recent passage of the SECURE Act, most non-spouse beneficiaries must totally withdraw a 401k or IRA within 10 years. It is deemed to be ordinary income for beneficiaries, which could result in a huge tax bill for your heirs. To avoid this, you can convert some or all of your retirement account assets to a Roth IRA during your lifetime, which lets you to pay the conversion taxes at your current income tax rate—a rate that may be much lower than your children or grandchildren’s tax rate. When you pass away, any money that is passed inside a Roth IRA goes tax-free to your heirs.

Failing to create a comprehensive estate plan. Properly establishing your estate plan now, will care for your loved ones financially, and can also save them a lot of emotional stress after you’re gone.

Talk to an experienced estate planning attorney about planning now. It can really affect your family for generations. It is one of the best gifts that you can leave your family.

Reference: Fox Business (Nov. 12, 2020) “5 estate planning disasters you'll want to avoid”

Advice If You are Named Executor of a Family Estate

“After a loved one passes, one of the biggest hurdles that families face, is passing wealth onto the next generation. Unfortunately, family dynamics can spur conflict and infighting among descendants.”

More than 75% of advisors polled by Key Private Bank said the most difficult part of estate planning is dealing with interfamily dynamics, according to a survey released in 2019.

Channel 10 Boston’s recent article entitled “Executor of a Family Estate? Here's How to Avoid Infighting Over Inherited Wealth” reports that the bank surveyed 130 of its client-facing advisors about their experience with individuals who are doing estate planning.

"The sensitivities of talking about estate planning often present emotional hurdles to putting a plan in place — especially when multiple marriages and blended families are involved," stated Karen Arth, Head of Trust with Key Private Bank, in the survey release.

Many family conflicts surrounding assets and estate planning are caused by miscommunication. The older generation should ask their children to join the conversation. Without this step, there can be a lack of clarity and transparency from generation to generation. The older generation believes that it did everything right in their estate planning, but often they don't explain their reasoning to their children and didn't give their children a chance to offer any input.

One way to prevent drama, as well as ways to remedy conflicts already started, is to begin the communication while everyone is alive.

When a person dies, they may leave an entire estate, with a lifetime of items to family. However, many of these items might not be listed in the will. As a result, the family must divide them up among themselves. Conflicts around sentimental value can arise. It is a good idea to seek help from a third party, so they can bring clarity and allow everyone to cool down. There are facilitators who can help. They are not just financial advisors and family dynamics experts but also professional mediators, who can help the family come to an agreement.

It is critical to have an open dialogue when it comes to dividing up assets. One way to avoid conflict is for the heirs to create wish lists of items they’d like, that can then be reviewed by the executor of the estate. Some people categorize items into groups of equal value, and others decide who gets what by rolling the dice. Whatever the method, open communication is vital to avoiding conflict.

Reference: Channel 10 Boston (Nov. 12, 2020) “Executor of a Family Estate? Here's How to Avoid Infighting Over Inherited Wealth”

What Questions Keep Pre-Retirees Awake at Night?

“Do you have answers for these four questions? Then congratulations and rest easy: You really are ready to retire.”

As we get to the final part of our careers, thoughts of how retirement will look can create mixed emotions. For many, it will be a time to dream about doing those things on their bucket list, such as traveling abroad, learning a hobby, making memories with grandchildren, or pursuing a new business venture.

However, for others, it may be a time of stress and uncertainly because of the extent to which our identity has been tied to our career success and advancement. The routines and structures we’ve followed for years will end, and we face a new reality.

Kiplinger’s recent article entitled “4 Questions That Keep Most Pre-Retirees Awake at Night” explains that for many people coming to this next phase of life, there are four questions that will keep them awake at night. Knowing the answers to these four questions, can give confidence to those who are prepared to make this a smooth transition.

Exactly When Can I Retire? With the traditional pension becoming a thing of the past, the answer may not be so obvious. We also can’t overlook the emotional piece of retirement. Research shows that the happiest people in retirement will be retiring to something, instead of retiring from something. Several pursuits in retirement can bring purpose and meaning to daily life. As you near retirement, consider what pursuits you may enjoy and allow yourself to look forward to getting started.

Will I Have Enough Money? What’s the “magic number” that makes it appropriate to retire? However, more importantly, what is your “magic number.” This may be tied emotionally to a vision you’ve had your entire career, like accumulating $1 million or paying off your mortgage. However, there’s no one-size-fits-all answer to this question. Start by creating a retirement budget and understand what percentage of your monthly expenses can be covered by fixed sources of income, like your Social Security, pension and investments. The closer this percentage is to 100, the better. You should also be certain that you parse out the purpose of your money and specifically dedicate it to things, like creating monthly income, covering future health care costs and growth to outpace inflation. If you do this, you’ll be better able to allocate your portfolio appropriately among various tools, such as savings, investments, annuities and life insurance, etc..

Will My Nest Egg Last Throughout Retirement? A major issue for retirees is having negative returns in their investment portfolio during their early years of retirement. Unlike your working years, when you may have been contributing money to your retirement plan on a regular basis, the opposite may now happen. Monthly withdrawals may be needed to generate needed income. This is referred to as a Sequence of Returns Risk, where the order in which the annual returns hit a portfolio matters significantly. The best way to manage this risk is to avoid taking systematic distributions from a fluctuating account. Earmark a portion of your portfolio to create the monthly income needed to cover fixed expenses that are beyond what your Social Security and your pension will provide. Once you have this, you’re ready to see what combination of investments and insurance tools are right for you.

Will My Family Be OK? If you die, will your spouse be OK and able to carry on? It’s essential to be sure that both spouses are comfortable with the finances and how decisions on investing and retirement have been made.

Reference: Kiplinger (Oct. 29, 2020) “4 Questions That Keep Most Pre-Retirees Awake at Night”

What Can I Do to Catch Up on Retirement Savings?

“Are you among the millions of workers who have fallen behind on retirement savings?”

Many workers haven’t created any plans to save for their retirement. However, you can start turning that situation around now. Money Talks News’ recent article entitled “The 7 Fastest Ways to Catch Up on Retirement Savings” says that, even if you can’t add to retirement savings at the moment, here are some ideas to plan for how you’ll address this shortfall, when you’re back on your feet financially.

Review your budget. If you need more money for retirement savings, change your budget. Make certain that all your money is identified and working for you. Reduce or cut expenses that prevent you from achieving goals.

“Catch up” your 401(k). If you are over 50, take advantage of the ‘catch-up contribution’ in your 401(k). In 2020, the base limit for contributions to workplace retirement accounts is $19,500. In addition, starting at age 50, workers with a 401(k) plan can contribute an extra $6,500 per year. If you have an IRA — either traditional or Roth — you can contribute $6,000, plus an extra $1,000 beginning at age 50.

Leverage all investment opportunities. When you invest in your 401(k), put enough in to at least get any full employer matching funds. There are also employers that match contributions to a health savings account, which can be a great hidden way to save for retirement. You can also maximize IRA contributions (Roth or traditional), depending on what is possible given your income. Any money left over can be invested it in a taxable account.

Bolster your earnings. If you’re behind in saving for retirement, you might need to boost your earnings more quickly. To earn more income, consider changing jobs, get training to update your skills, or finding a side gig. If income doesn’t grow over time, it’s hard to have savings strategies accelerate retirement success.

Be wise with raises and windfalls. When you get a raise, split the amount and put half in a checking account and half toward retirement savings.

Minimize your spending. This can be the toughest part, but it’s also perhaps the most important. Reducing spending increases your savings, and it also teaches you to live with less. If you learn to live more modestly, you won’t need to save as much to continue your lifestyle in retirement. If you’re unsure where all your money is going, monitor your spending. List all the expenses and track them over time. When you know where your money is going, you’ll have the information needed to determine if there are places where spending can be diverted to savings.

Make a “mortgage payment” after the house is paid off. If you’ve worked hard to pay off the mortgage, save the money that was budgeted for the house. Save it in an investment account to use for retirement spending. Do the same when you pay off a car loan and watch your wealth grow.

Reference: Money Talks News (Oct. 8, 2020) “The 7 Fastest Ways to Catch Up on Retirement Savings”