California Probate - Law Offices of Janet Brewer Blog

How Do I Start My Estate Plan?

“Estate planning design and implementation is not only complex but can be highly emotional. Therefore, it’s important to have a basic understanding of the estate planning process, before approaching a professional.”

The decision to start an estate plan is critical for all families, but it can also be a challenge. In many cases, the greatest impediment families face initially is discussing death, especially the deaths of family members. Forbes’ recent article entitled “Estate Planning 101: Tackling Your Estate Plan” suggests several life events that will trigger the need to create an estate plan for your family or business.

The article also reminds us that it’s important to think about what might happen to you or someone in your family, in the event of a substantial life change. Here are some life events that can necessitate the need for an estate plan and a visit with your attorney:

• A marriage;
• The birth or adoption of a child or grandchild
• The start of a new business
• A significant increase in net worth
• Changes in the tax laws
• The death of a spouse or family member
• Receiving an inheritance
• A divorce
• The sale of a business or property

There is no exact standard for when you should start creating your estate plan, but if any of these events happen to you or your family, it would be wise to start the conversation. While planning your estate may feel overwhelming, laborious, or expensive, not having a plan can be financially devastating, and can add stress to the situation.

Estate planning is a continuous process that should be tracked and reviewed annually. Let’s look at the steps for creating an estate plan:

Understand the Basics. First, learn the basics of estate planning and understand how the gift and estate tax laws may have an effect on your assets.

Identify Your Objectives. Map out your objectives and select possible guardians, executors, trustees, heirs and other details with your attorney. You should also draft a personal financial statement, detailing a breakdown of your assets and liabilities.

Look at Your Insurance. Third, you should review what you have for life insurance to be certain that it’s aligned with and structured appropriately for your objectives. You may need to look into life insurance as a way to protect your family and income, if you haven’t done so already.

Finalize the Design Of Your Estate Plan. Finalize your estate planning design with the help of your estate planning attorney. Review your fiduciaries and your will, powers of attorney, trusts, healthcare proxy and a living will.

Sign your Documents. Next, you need to sign the documents.

Visit Your Plan Periodically. Finally, review your plan every few years or when there is a life event in your family.

Now that you have the basics under your belt, it should feel easier to address this important task.

Reference: Forbes (March 11, 2020) “Estate Planning 101: Tackling Your Estate Plan”

Are My Beneficiary Designations Trouble for My Heirs?

“Most consumers are familiar with the beneficiary designation form they complete when opening an IRA or 401(k). The form designates who receives the asset, if the account owner dies. However, these forms can create confusion, unintended bequests and family turmoil, if not adequately monitored.”

There are many account types that are governed by beneficiary designation, such as life insurance, 401(k)s, IRAs and annuities. These are the most common investment accounts people have with contractual provisions to designate who receives the asset upon the death of the owner.

Kiplinger’s recent article entitled “Beneficiary Designations – The Overlooked Minefield of Estate Planning” provides several of the mistakes that people make with beneficiary designations and some ideas to avoid problems for you or family members.

Believing that Your Will is More Power Than It Really Is. Many people mistakenly think that their will takes precedent over any beneficiary designation form. This is not true. Your will controls the disposition of assets in your “probate” estate. However, the accounts with contractual beneficiary designations aren’t governed by your will, because they pass outside of probate. That is why you need to review your beneficiary designations, when you review your will.

Allowing Accounts to Fall Through the Cracks. Inattention is another thing that can lead to unintended outcomes. A prior employer 401(k) account can be what is known as “orphaned,” which means that the account stays with the former employer and isn’t updated to reflect the account holder’s current situation. It’s not unusual to forget about an account you started at your first job and fail to update the primary beneficiary, which is your ex-wife.

Not Having a Contingency Plan. Another thing people don’t think about, is that a beneficiary may predecease them. This can present a problem with the family, if the beneficiary form does not indicate whether it is a per stirpes or per capita election. This is the difference between a deceased beneficiary’s family getting the share or it going to the other living beneficiaries.

It’s smart to retain copies of all communications when updating beneficiary designations in hard copy or electronically. These copies of correspondence, website submissions and received confirmations from account administrators should be kept with your estate planning documents in a safe location.

Remember that you should review your estate plan and beneficiary designations every few years. Sound estate planning goes well beyond a will but requires periodic review. If this is overlooked, something as simple as a beneficiary designation could create major issues in your family after you pass away.

Reference: Kiplinger (March 4, 2020) “Beneficiary Designations – The Overlooked Minefield of Estate Planning”

Do I Need an Estate Plan with a New Child in the Family?

“If you have children or are expecting one, you may also want to take the three big estate planning steps that we did.”

When a child is born or adopted, the parents are excited to think about what lies ahead. However, in addition to all the other new-parent tasks on the list, parents must also address a more depressing task: making an estate plan.

When a child comes into the picture, it’s important for new parents to take the responsible step of making a plan, says Motley Fool’s recent article entitled “As a New Parent, I Took These 3 Estate Planning Steps.”

Life insurance. To be certain that there’s money available for your child’s care and to fund a college education, parents can buy life insurance. You can purchase a term life insurance policy that’s less expensive than a whole-life policy and you'll only need the coverage until the child is grown.

Create a will. A will does more than just let you direct who should inherit if you die. It gives you control over what happens to the money you leave to your child. If you were to pass and he wasn’t yet an adult, someone would need to manage the money left to him or her. If you don’t have a will, the court may name a guardian for the funds, and the child might inherit with no strings attached at 18. How many 18-year-olds are capable of managing money that’s designed to help them in the future?

Speak to an experienced lawyer to get help making sure your will is valid and that you’re taking a smart approach to protecting your child's inheritance.

Designate a guardian. If you don't name an individual to serve as your child's guardian, a custody fight could happen. As a result, a judge may decide who will raise your children. Be sure that you name someone, so your child is cared for by people you’ve selected, not someone a judge assigns. Have your attorney make provisions in your will to name a guardian, in case something should happen. This is one step as a new parent that’s critical. Be sure to speak with whomever you're asking to be your child's guardian and make sure he or she is okay with raising your children if you can't.

Estate planning may not be exciting, but it's essential for parents.

Contact a qualified estate planning attorney to create a complete estate plan to help your new family. 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: Motley Fool (Feb. 23, 2020) “As a New Parent, I Took These 3 Estate Planning Steps”

Medical Emergency? The Estate Planning that You Need Now

If you suddenly have a medical emergency, you might have the immediate need for estate planning. An emergency can help you focus on the important things in life, but also make you realize that you are not prepared. An estate plan can get your affairs in order and give you more peace of mind.

First Steps After a Medical Emergency

As you sit in a hospital bed or return home after a scary medical emergency, you might be thinking about what went wrong. Maybe the hospital wouldn’t let your partner in your room, or your business lost money because you were unreachable. Or maybe you began to worry about your future and providing for family.

If there is any risk that you will return to the hospital soon, you might want to sign a power of attorney or advance directive right away. These documents allow other people of your choice to make decisions for you if you are incapacitated. For example, an advance directive could help an unmarried partner gain access to your hospital room and make medical decisions for you. A power of attorney for finances could help a trusted employee make business decisions while you cannot, to keep money coming in the door.

You can complete and sign powers of attorney or advance directives very quickly, especially with the help of an estate planning lawyer. Give a local lawyer a call now to protect yourself, your family, and your business during possible future emergencies.

Estate Planning for the Long Term

In addition to immediate practical problems, a medical emergency may force you to think about future issues as well. For example, you may realize that you do not have a will or any other estate planning in place. Your children, spouse, partner, or other relatives could be left without financial resources. Or someone might inherit contrary to your wishes.

To solve this stressful problem, get important estate planning documents in place now. You may want to sign a will, purchase life insurance, make beneficiary designations on retirement accounts, and more. Do keep in mind that some life insurance companies reject people with significant medical problems. But you could qualify for some policies or have other options such as disability insurance.

When it comes time to set up the estate plan, definitely speak to a lawyer rather than looking for free forms. You might have a complicated family situation or face potential tax issues that free forms will not address. Plus, a lawyer can determine the best plan for you that will cover your wishes and needs.

Planning your estate? Look to Janet Brewer, Esq. for thorough and thoughtful estate planning advice. Janet’s more than 20 years of legal experience will give you confidence and peace of mind. To schedule a “Get Acquainted” meeting, visit Janet's website or call her office at (650) 469-8206.

Should I Use Life Insurance in My Estate Planning?

“Life insurance may play a vital role in an estate plan, because insurance proceeds can be counted on to provide liquidity when it’s needed.”

With proper planning, insurance money can pay expenses like estate taxes. It will help keep other assets intact.

For example, Hector passes away and leaves his rather large estate to his daughter, Isabella. Because of the size of the estate, there’s a hefty estate tax due. However, unfortunately, most of Hector’s assets are tied up in real estate and an IRA. Isabella may not be keen on a quick forced sale of the real estate to free up some cash for the taxes. If Isabella taps the inherited IRA to raise cash, she’ll have to pay income tax on the withdrawal and lose a valuable opportunity for extended tax deferral.

FedWeek’s recent article entitled “Using Life Insurance to Protect Your Estate” that in this scenario, Hector could plan ahead. Anticipating such a result, he could buy insurance on his own life. The proceeds of that policy could be used to pay the estate tax bill. Isabella can then keep the real estate, while taking only the Required Minimum Distributions (RMD) that are warranted by law from the inherited IRA. If the insurance policy is owned by Isabella or by a trust, the proceeds most likely won’t be included in Hector’s estate, and the money won’t increase the estate tax liability she has.

However, some common life insurance mistakes can sabotage your estate plan:

• Designating your estate as the beneficiary. This will place the policy proceeds in your estate, which exposes the funds to estate tax and your creditors. Your executor will also have more paperwork, if your estate is the beneficiary. Instead, name the appropriate people, trust or charities.
• Naming just a single beneficiary. Name at least two “backup” beneficiaries to decrease confusion, in the event the main beneficiary should die before you.
• Placing your policy in the “file and forget” drawer. Review your policies at least once every three years, make the appropriate changes and get a confirmation, in writing, from the insurance company.
• Inadequate insurance. In the event of your untimely death, if you have a young child, in all likelihood it will take hundreds of thousands of dollars to pay all her expenses, such as college tuition. Failing to purchase adequate insurance coverage may hurt your family. This also shouldn’t be a hardship with term insurance costs so low.

Reference: FedWeek (Feb. 6, 2020) “Using Life Insurance to Protect Your Estate”

What’s the Best Way to Provide for My Family when I’m Gone?

“Estate planning involves making a plan for the transfer of your property upon your death or incapacity. Your estate is all of the property you own, which can include cash, jewelry, cars, houses, clothes, land, retirement, investments and savings accounts. The goals of estate planning are to make sure most of your estate is transferred to your beneficiaries, you pay minimal taxes on the estate and children are assigned guardianship.”

The estate planning process should begin when you’re at least 18 years old, of sound mind and as free as possible from emotional stress, suggests Essence’s recent article entitled “Death And Money: How To Protect And Provide For The Loved Ones You Leave Behind.” You don’t want to do this kind of planning when you’re on your sickbed or when your mental capabilities are in decline.

If you’re new to estate planning, here are the necessary steps to ensure you start the process on the right foot. Work with an experienced estate planning attorney to be certain that your plan is correct and legal.

A will. This is a legal document that details how to distribute your property and other assets upon death. A will can also nominate guardians for minor children. Without this, the state will dictate how to distribute your assets to your beneficiaries, according to the laws of intestate succession. If you already have a will, be sure it’s updated to reflect an accurate listing of assets and beneficiaries that may be changed with a divorce, financial changes, or the birth or adoption of a child.

Life insurance. This is a great idea to protect and provide for your family when you’re gone. Life insurance pays out money either upon your death or after a set period. Even if you have a life insurance policy as an employee benefit, this coverage isn’t portable, which means it doesn’t follow you when you switch jobs. This can result in gaps in coverage at times when you may need it most.

Work with a legal professional. Estate planning is not a DIY project, like cleaning the garage. You should have the counsel and assistance of an experienced estate planning attorney to help you create a comprehensive estate plan. An estate planning attorney can also coordinate with your financial advisor to manage your estate’s finances, such as making recommendations and funding investment, retirement and trust accounts.

An estate planning attorney also can make sure that all of your beneficiaries and secondary beneficiaries are up-to-date on your investment accounts, pensions and insurance policies. An estate planning attorney will also help you with the best options for maintaining your estate after death or in the event of incapacity. In addition to preparing a will, your attorney can create a living trust that details your desires regarding your assets, your dependents and your heirs while you’re still alive. He can also draw up your power of attorney for your health care, verify property titles and create legal document to ensure a succession plan for your business.

Finally, an estate planning attorney or probate attorney can help the personal representative or executor of an estate with closing responsibilities setting up an estate account, tax filings and paying the final distributions to beneficiaries.

A key to estate planning is to get (and stay) organized. Know the location and passwords (if applicable) of all your important legal and financial documents. You should also communicate the location of these files to trusted family members and to your estate planning or probate attorney.

Reference: Essence (Jan. 29, 2020) “Death And Money: How To Protect And Provide For The Loved Ones You Leave Behind”

Is Life Insurance a Good Idea for My Estate Plan?

“Most American adults own life insurance, yet the buying process can be perplexing and pose traps for the unwary — and cause financial problems years down the road.”

Around 57% of adults in the U.S. own a life insurance policy, according to a joint study by LIMRA, a trade group, and Life Happens, a nonprofit insurance advocate. CNBC’s recent article entitled “Why some life insurance could prove risky for consumers” goes on to state that the sales standards governing how agents and brokers can recommend certain types of life insurance to consumers are not strict. The complexity of many types of life insurance may also hide potential abuse and make it hard to know if you’re getting good advice.

There are some types of life insurance that aren’t necessarily mind-boggling. For example, term insurance is pretty clear. This type of policy covers buyers for a certain period of time, such as 10 or 20 years, for an annual fee that’s locked in and which the purchaser knows at the time of sale.

However, permanent life insurance — also called as cash-value insurance — is more complicated. With permanent life insurance, a buyer is meant to keep the insurance policy, such as whole life and universal life, until death rather than for a set term. This type of insurance also has a side investment account that earns interest and dividends. The account is designed to cover annual premiums and other insurance costs, which typically increase each year with age. But in the event that an investment account underperforms expectations or insurance charges increase more than expected, a purchaser may have to pay more money to cover a shortfall or risk losing the coverage altogether.

Remember that a policy that may look fairly inexpensive today, may not be the case later in life.

It’s also important to note that state life insurance regulations frequently don’t require insurance agents to fully disclose the risks to the public. Of course, insurance companies promised that they’ll disclose the risks to buyers in the contracts they sign. However, the fine print can be more than 100 pages long.

Insurance agents are also typically permitted to recommend life insurance that will pay them a higher commission, rather than suggesting a policy that may be just as good but pay the agent less or no commission. While not every life insurance agent is misleading the public, the regulations aren’t in the buyer’s favor, say consumer advocates. Each state regulates many different aspects of life insurance, like advertising, disclosure, licensing and unfair trade practices.

State insurance regulators say that there were over 4,000 individual cases of wrongdoing by life insurers or insurance agents in 2019, according to data from the National Association of Insurance Commissioners. That’s compared with the nearly 138 million life insurance policies owned by Americans as of year-end 2018, according to ACLI.

As a reminder, you should only buy insurance policies that you understand. Be sure to ask about and be aware of risks, like potential increases in future premiums and other elements of a life insurance policy that could be changed. You should also consult with an experienced estate planning attorney to be sure that the amount of life insurance you’re considering fits into your overall financial and estate plan.

Reference: CNBC (January 19, 2020) “Why some life insurance could prove risky for consumers”

What Should I Know about Beneficiary Designations?

“Many people have tens of thousands–even hundreds of thousands–of dollars in their IRAs. If you have an asset that large, shouldn’t you devote more effort to planning for its ultimate disposition?”

A designated beneficiary is named on a life insurance policy or some type of investment account as the individual(s) who will receive those assets, in the event of the account holder's death. The beneficiary designation doesn’t replace a signed will but takes precedence over any instructions about these accounts in a will. If the decedent doesn’t have a will, the beneficiary may see a long delay in the probate court.

If you’ve done your estate planning, most likely you’ve spent a fair amount of time on the creation of your will. You’ve discussed the terms with an established estate planning attorney and reviewed the document before signing it.

FEDweek’s recent article entitled “Customizing Your Beneficiary Designations” points out, however, that with your IRA, you probably spent far less time planning for its ultimate disposition.

The bank, brokerage firm, or mutual fund company that acts as custodian undoubtedly has a standard beneficiary designation form. It is likely that you took only a moment or two to write in the name of your spouse or the names of your children.

A beneficiary designation on account, like an IRA, gives instructions on how your assets will be distributed upon your death.

If you have only a tiny sum in your IRA, a cursory treatment might make sense. Therefore, you could consider preparing the customized beneficiary designation form from the bank or company.

For more customization, you can have a form prepared by an estate planning attorney familiar with retirement plans.

You can address various possibilities with this form, such as the scenario where your beneficiary predeceases you, or she becomes incompetent. Another circumstance to address is if you and your beneficiary die in the same accident.

These situations aren’t fun to think about but they’re the issues usually covered in a will. Therefore, they should be addressed, if a sizeable IRA is at stake.

After this form has been drafted to your liking, deliver at least two copies to your custodian. Request that one be signed and dated by an official at the firm and returned to you. The other copy can be kept by the custodian.

Reference: FEDweek (Dec. 26, 2019) “Customizing Your Beneficiary Designations”

If I’m 35, Do I Need a Will?

“It's never too early to start estate planning. If you already have a family, getting your personal affairs in order is a must. The sooner you start planning, the more prepared you will be for life's unexpected twists and turns.”

Estate planning is a crucial process for everyone, no matter what assets you have now. If you want your family to be able to deal with your affairs, debts included, drafting an estate plan is critical, says Wealth Advisor’s recent article entitled “Estate planning for those 40 and under.”

If you have young children or other dependents planning is vitally important. The less you have, the more important your plan is, so it can provide as long as possible and in the best way for those most important to you. You can’t afford to make a mistake.

Talk to your family about various “what if” situations. It is important that you’ve discussed your wishes with your family and that you’ve considered the many contingencies that can happen, like a serious illness or injury, incapacity, or death. This also gives you the chance to explain your rationale for making a larger gift to someone, rather than another or an equal division. This can be especially significant if there’s a second marriage with children from different relationships and a wide range of ages. An open conversation can help to avoid hard feelings later.

You should have the basic estate plan components, which include a will, a living will, advance directive, and powers of attorney. These are all important components of an estate plan that should be created at the beginning of the planning process. A guardian should also be named for any minor children.

In addition, a life insurance policy can give your family the needed funds in the event of an untimely death and loss of income—especially for young parents. The loss of one or both spouses’ income can have a drastic impact.

Remember that your estate plan shouldn’t be a "one and done thing." You need to review your estate plan every few years. This gives you the opportunity to make changes based on significant life events, tax law changes, the addition of more children, or their changing needs. You should also monitor your insurance policies and investments because they dovetail into your estate plan and can fluctuate based on the economic environment.

When you draft these documents, you should work with a qualified estate planning attorney. Contact our office today to schedule your consultation.

Reference: Wealth Advisor (Jan. 21, 2020) “Estate planning for those 40 and under”

Include These Three Items in Your Will

“A will or trust explains what you want to have happen to your assets when you die, hopefully in a very, very long time. While most people understand that a will explains what to do with money, property, and children, there are other parts you might be surprised by.”

MSN’s recent article entitled “3 surprising things you might not think to include your will” tells about three things to include in your will that you may not have thought about before.

Guardianship and funds for your pet. If you have a pet, you’ll want to make certain that it has care when you’re not around. You can name a guardian to take ownership of your pet, in the event your pet outlives you. You can also set up a pet trust in some states.

An executor for your digital assets. You probably have accounts with data on Facebook, Twitter, Instagram, YouTube and other social media accounts. You may have an account for online gaming, operate an online small business, or own other important digital assets. If so, you should appoint someone to manage your digital afterlife.

A digital executor should be able to access your online accounts and manage closing them down or moving them to a new strategy.

Charitable donations. If you have given to a religious organization, school, or other nonprofit, you can include these charities in your estate plan. Another option is to instruct a family member to make a donation with a part of an inheritance. It’s not legally binding, but could it pass on a tax benefit to the ultimate donor.

In addition, remember to keep your beneficiaries updated on all life insurance policies and retirement accounts, because the listed beneficiary on these accounts supersedes anything you put in your will.

If you get divorced and remarried, update your will and also make certain that your life insurance beneficiary is updated.

Don't procrastinate. Make sure that all of your estate planning documents are up to date.

Meet with your estate planning attorney every year or two, to also be sure your plan reflects any changes in the law or changes in your circumstances.

Reference: MSN (Jan. 10, 2020) “3 surprising things you might not think to include your will”