in Musings , 1460 references
Hindman: Americans know they need to plan for their later years and get their affairs in order, especially as retirement approaches. But while people recognize that need, too many aren’t following through and taking action.
When someone passes without a will, it means they have died “intestate” – meaning the intestacy laws of the state where they reside will determine how the property is distributed upon your death. But without clear direction on how you would like critical items like financial assets, property, personal possessions and items of emotional value distributed among loved ones, confusion and disarray are a common end result. Not only does the lack of a will create turmoil and headaches – both financial and emotional – for family members; it heightens the risk that your end-of-life preferences won’t be carried out in accordance with your wishes. On the other hand, a well-prepared legacy can give you the simple and satisfying peace of mind of knowing that you’ve done what you can to organize your life, shape your legacy and leave your family with a roadmap of your preferences. It can be one of the greatest final gifts we leave to those we love.
Yes, you should have your affairs in order.
But I really dislike self-interested jackasses peddling crap -- and this falls into that category.
First, there are plenty of people who need no Will at all. If you have little or nothing in terms of assets, or intend to die broke and have no minor children then a Will is not only a waste of time it is functionally worthless. In fact in that situation whoever you name as Executor (Personal Representative in some states) would be five-alarm stupid to accept the job and file the Will with the courts because there's nothing to get but once you file there are both costs and responsibilities. In other words if you know you will either die broke or in the hole and have no minor children then save the money.
You should still have a durable power of attorney and advance directive; those are to some extent state-specific depending on where you live, in an attempt to have what you want to happen actually happen when it comes to you being flat on your back and unable to make decisions. Make damn sure said advance directive is on file with all the hospitals and other places you might be taken if you collapse without warning; until said place has it and knows they have it they'll do whatever the hell they want and maybe, but not necessarily, whatever someone who identifies as one of your next-of-kin wants. If this isn't what you want it's bad news and the cost of that, if any, will wind up billed to your estate which your estate will be obligated to pay. So if you do only one thing make it that advance directive and put it on file at all the local hospitals.
Warning: Some people will tell you to put someone else on your accounts. If you are offered this, to be a "second signer" or "co-owner" do not accept unless you are that person's spouse, in which case it is (of course) perfectly ok. The reason to refuse is that if they do something stupid you are fully responsible legally and financially, and this can ruin you instantly. Consider someone who has brokerage account and is short at the margin limit of a company that gets taken out and the stock doubles. They will come after your house! Don't do it.
A power of attorney gives you the ability to take care of business while the other person is alive without that risk and is the correct instrument; there are several forms of that from very limited ones for a specific asset or account and specific directives all the way to a general durable power of attorney that is extremely broad and essentially gives the person who holds it the same rights as the principal. Just be aware it turns into a pumpkin instantly upon the principal's death and if you are holding one it is a civil and in some cases criminal offense to self-deal or otherwise screw the principal who gave it to you.
If you have or expect to have assets, or in the instance where you have minor children then a Will is appropriate. Just understand its limitations and do it the right way to minimize them.
Specifically, get anything worthwhile out of the Will and thus out of probate. This will make your heirs happier as it's faster, cheaper and has a near-perfect capability to have happen exactly what you wish so long as that's legal.
The first thing to consider is that for anything that doesn't trigger gift tax issues (e.g. things worth under $14,000 in total to a single person, but perhaps of immense sentimental value) give it to the people who you want to have it while you're still alive -- but before you're on your deathbed. This is very unlikely to be challenged and if it is the person challenging it will be forced to spend money on a legal case with no monetary reward.
When you die with or without a Will but with some assets subject to probate then "someone" has to file with the probate court. If you do not have a Will then whatever is subject to probate is distributed based on state law; there's a table they go down (e.g. "spouse first, then any direct descendant children, then ..... and on and on until the category fills.) A Will overrides this to any extent you wish and nominates one or more people (in a chain, if the first refuses or is dead, etc) to be the Personal Representative (or "Executor" in some states; same thing, different names depending on the state.)
However, as soon as that Will is filed with someone named as Personal Representative (assuming the designation of either as valid is not contested, and it can be if someone wants to), or Probate is open "intestate" (with no Will) the fees start. Filing and publication fees are typically in the many hundred dollar range right up front. Unless that person both lives locally and can and will keep their act together sufficiently to deal with the court on a routine basis then there will also be legal fees involved. Most people will either want or need at least legal consultation in doing this job; if you have a law office do it "end to end" for you (which is also an option) the cost is going to double or more. The cost of this process in dollar terms is almost-always well north of a thousand dollars simply in court fees alone by the time it's all said and done; with lawyers involved it only takes one that's a bit of a snake to run the bill through the roof since all time is billed hourly. Choose wisely and ask lots of questions!
Further, and much worse in many cases than the money hit is the fact that once Probate is opened there are statutory time windows that amount to a virtual standstill in terms of anything being paid out or distributed and similar. The reason for this is that all states have a "Bar Date" for claims; 3 or 4 months is common and the clock does not start running until Probate is filed and published. A company or person with a financial claim on the estate has that long to file their claim; if the Personal Representative pays out anything beyond funeral and ordinary maintenance costs (e.g. utility bills on a house, etc) and there are insufficient funds to cover claims he or she can be held personally responsible for those debts! Therefore the usual (and good) advice is distribute nothing until the bar date passes so you know exactly how much is left. If the Personal Representative is comfortable enough with the decedent's debt profile (usually only true if you were running that person's money for a couple of years prior to their death) then some distribution can be made sooner, especially of things that have little financial but lots of sentimental value (various bits and pieces of personal property, etc.) One thing to be very conscious of is anything on a lease; this most-often comes up with cars but it can be anything (e.g. an apartment!) Death does not void a lease in nearly all cases and the firm or person the decedent took it from can and usually will try to collect the entire remaining balance of payments. That can be a literal crap-ton of money and is quite capable of turning a modest estate into a smoking hole with negative value.
Next up is that most states assess an inventory fee on estates -- which amounts to a tax. That's usually assessed on the net value of assets on the day of death. Some assess straight-up taxes as well. There is also a potential federal estate tax issue but that doesn't hit most people as the limit is quite high ($11.4 million at present); if you're in that bracket then you're a 5-alarm idiot if you don't already have professional legal advice to deal with it in advance with some sort of bypass trust. There are ways to defray that tax and in some cases completely avoid it but that has to be done well in advance, so if you're that wealthy head thee to a good estate planning attorney pronto.
Note that if you do not file probate on an estate then there is still a statute of limitations on debts -- typically two years, but in some states it can be materially longer. In other words if there are debts then it's to advantage to bar any who don't pay attention by filing Probate -- but only if there are assets to pay the debts with and, when that's done, something will be left! Otherwise the correct action is to walk away and let the creditors pound sand; that you're named in a Will does not mean you're obligated until and unless you accept the appointment. Figure out if it's worth it (there will be something left, in your best estimation, and whatever you'll receive is enough to be worth your trouble) before you file!
IMHO, assuming no minor children, your goal while alive should be to make it not worth it to Probate the Estate even if there are assets and by doing so deny both the lawyers and the courts their fees.
Many times this can be done.
First, financial accounts of various sorts can for zero cost have what is known as "POD" put on them. That's payable on death and it's exactly what the name implies. You designate who gets what percentage and it's a simple form you fill out at the bank or brokerage. If you die your heirs need only present a death certificate, which they can usually obtain within a week or your passing, and the money is theirs -- period. A cashier's check is cut and that's the end of it. Likewise life insurance policies should always name specific beneficiaries and not your Estate. If you have modest debts -- such as a credit card for ordinary monthly expenses -- and someone you trust to pay it when you die then POD them an account specifically for that purpose with just enough in it for that to happen. They pay the debts after you pass with that money and that's the end of it.
Second, if you have Real Estate and it's owned and has a positive equity then the superior means of dealing with it is usually a Revocable Living Trust. It costs money to set one up if you use a lawyer (typically a couple of thousand) and it's state specific as is a Will but only at initiation. Once established it remains valid even if you move to a new state. The only thing to be careful of is the potential for state tax considerations in states that have a death or income tax. If you live in such a state and intend to move to a state where such is not the case move first, then set it up in the new state. If you already have a trust in a hostile tax environment state then revoke it, transfer the assets out once you move and set up a new trust in the "friendly" state, transferring them into the new one. A trust, once set up, must be funded by having the assets transferred into it. In other words for a house you re-title the house into the Trust. There are people who claim that a trust "hides" ownership -- this is not really true unless you name someone else as Trustee to manage it, which is very dangerous and for most people should be done, because title has to vest in a person; thus it's something like "Karl Denninger as Trustee for blah-blah Trust of date-set-up." But, since the Trust document itself is private who's named as a beneficiary is not disclosed and the Trust is not filed with a court after you die. In the trust documents you name a successor trustee who is the person (or chain of persons) who obtains control of the trust after you die. You can designate pretty much anything that's legal which you want done in a Trust. Revocable living trusts can be modified at-will including assets being moved into and out of them during your life, you can change beneficiaries, etc. Note that a revocable living trust does not provide any sort of tax protection since you maintain control over the assets until your death, at which point it becomes irrevocable and cannot be changed.
Trusts can also have financial accounts re-titled into them and that's frequently done if, for example, you have minor children and a fair bit of money -- or adult children you don't want to have get all the cash at once. Thus the term "Trust Fund Babies"; if there's plenty of money you may be perfectly ok with having a law firm named as the successor trustee to carry it out when you get hit by a bus since you don't care about the fees and costs. For most people designating the chain of heirs is sufficient, but once you get into high net worth situations you may make a different choice.
Note that in most cases you do not want to title vehicles into a trust; the reason is that in many states it is difficult to obtain insurance on them. They're one of the few things you should basically never put in a revocable trust, unless it's something like a classic car collection.
Along with the Trust you usually want what is called a "pour over" Will, which simply states that anything not in the trust and otherwise undisposed goes into the Trust on your death. Note that the Will still has to be probated; if it's a "small estate" this is cheap and fast but the entire point of using the Trust and POD in the first place is to avoid the cost and hassle of formal probate -- if you don't re-title things properly you spent the time and trouble (never mind money if a lawyer was involved) to set the trust up fro nothing since the pour-over Will still have to be probated!
The key difference with a Trust is that just like a POD on a financial account it doesn't go through probate; the court never gets their hands on it and thus there are no delays or fees assessed by same. This means the heirs get possession and control literally as soon as you die, which makes things a lot simpler. In addition nobody has access to your list of who gets what other than the trustee; unlike a Will which is filed with the court and becomes public a Trust does not.
Consider that if you have all your assets covered by a Will -- a house, a bank account, maybe a brokerage account -- and you die, until someone files that Will and is named Personal Representative how does the power bill get paid at the house? Your bank account is locked on the day of your death and a power of attorney to access that account becomes worthless. Someone is going to have to fork up their money to take care of that until the Will can be put into probate and Estate accounts set up and financial accounts transferred or liquidated, all of which costs time and money. In addition there's a very clean argument that nobody has the right of possession (e.g. to live there!) in said house at the moment of your death until Probate is established and on the day the Probate Court appoints the Personal Representative that person immediately has a fiduciary duty to preserve the value of same for the benefit of all the heirs. This can easily conflict with reality; let's say you have someone living in the house who is a partial heir but is a drug user and might trash the place or interfere with the sale required since no heir has the means or desire to buy out the others; the PR can, if the house isn't to pass solely to said person, have a legal duty to forcibly evict them no matter who it is and no matter what else is in the Will as their duty is to protect the Estate assets for the benefit of all the heirs (not just the person living there) and that duty is not to the dead person it's to the court!
If the bank account is POD'd to your heirs in some percentage distribution and the house is in a Trust that specifies that "X" has a right of possession then you immediately (within a couple of days) have the funds to pay the power bill and whoever is so-designated has the rights set forth in the Trust document no matter whether it's to the benefit of the asset -- or the rest of the estate -- or not. In other words your desires before your death are continued exactly after your death and as long as whatever you put in that document is legal it's enforceable. Even better is that whatever people have the right to possession of the property need do nothing to enjoy it, and the title remains undisturbed since the Trust still owns it.
Now the successor trustee, once you die in the case of a Revocable Living Trust, still has to dispose of the property as the Trust directs. But re-titling the house out of the Trust into someone's hands (if it's a 100% gift) or selling it and splitting the proceeds is no different than any other Real Estate transaction, as opposed to filing a Will, having the PR appointed, getting letters of authority and similar, along with all the delays and costs involved.
Finally none of this changes tax and debt obligations; you cannot evade either. If you try creditors (or the IRS) can (and if its worth it for them will) sue to claw back whatever you try to distribute outside of the process. If you have $10 large in a bank account and owe $25 large on a credit card, thinking you can POD the bank account to your daughter as a way to screw the credit card company out of the $25,000 that's likely to fail and get her sued a few months after you pass, quite possibly after she's already spent the money! Don't do that.
Finally there are "small estate" rules for people who die with little in the way of assets but the limits vary from state to state and in some states are laughably low, to the point that someone with nothing more than a modest car exceeds them.
As you can see this can be a lot more complex than it first appears, even if you aren't particularly wealthy. The only place it doesn't matter at all is if you either are or intend to die broke (or even better, deeply in the hole) -- in that case then fuck 'em and do nothing with regard to finances (e.g. POD, will or trust), on purpose, but make damn sure nobody else has joint responsibility for anything so the people who you owe can't come after someone else when you die.
In short get competent advice -- there are plenty of people out there who are outright snakes and whoever is managing things for you when you pass is going to get to meet a bunch of them.
I just recently wound up my later mother's estate; I'm not a lawyer nor did I set up her affairs originally, but I did hold powers of attorney for both financial matters and health care and was her Personal Representative, and have seen the flat-out ugly bullcrap that everyone in the world tries to pull. I got dozens of spammy and in some cases scammy letters from various entities and people, along with more than a few phone calls. It's a five alarm pain in the ass and a good thing that I'm pretty-much a pissed-off alligator when someone steps on my tail and am more than willing to chase-and-bite -- hard. Most people would have been buttfucked by some of the crap that was pulled -- as it stands everyone who was legitimately owed money (not many) got paid and there was something left, with none of the schemers and scammers getting anything. That's the way it should be but it was overly complex -- when my time comes it won't be.