Paul O. Dillon, Attorney at Law

Can You Plan for Probate?

What can you do to help heirs have a smooth transition when settling your estate? A recent article from The Community Voice, “Managing probate when setting up your estate,” provides some recommendations.

Joint accounts. Married couples can own property as joint tenancy, which includes a right of survivorship. When one of the spouses dies, the other becomes the owner and the asset doesn’t have to go through probate. In some states, this is called tenancy by the entirety, in which married spouses each own an undivided interest in the whole property with the right of survivorship. They need content from the other spouse to transfer their ownership interest in the property. Some states allow community property with right of survivorship.

There are some vulnerabilities to joint ownership. A potential heir could claim the account is not a “true” joint account, but a “convenience” account whereby the second account owner was added solely for financial expediency. The joint account arrangement with right of survivorship may also not align with the estate plan.

Payment on Death (POD) and Transfer on Death (TOD) accounts. These types of accounts allow for easy transfer of bank accounts and securities. If the original owner lives, the named beneficiary has no right to claim account funds. When the original owner dies, all the named beneficiary need do is bring proper identification and proof of the owner’s death to claim the assets. This also needs to align with the estate plan to ensure that it achieves the testator’s wishes.

Gifting strategies. In 2022, taxpayers may gift up to $16,000 to as many people as you wish before owing taxes. This is a straight-forward way to reduce the taxable estate. Gifts over $ 16,000 may be subject to federal gift tax and count against your lifetime gift tax exclusion. The lifetime individual gift tax exemption is currently at $12.06 million, although few Americans need worry about this level.

Revocable living trusts. Trusts are used to take assets out of the taxable estate and place them in a separate legal entity having specific directions for asset distributions. A living trust, established during your lifetime, can hold whatever assets you want. A “pour-over will” may be used to add additional assets to the trust at death, although the assets “poured over” into the trust at death are still subject to probate.

The trust owns the assets. However, with a revocable living trust, the grantor (the person who created the trust) has full control of the assets. When the grantor dies, the trust becomes an irrevocable trust and assets are distributed by a successor trustee without being probated. This provides privacy and saves on court costs.

Trusts are not for do-it-yourselfers. An experienced estate planning attorney is needed to create the trust and ensure that it follows complex tax rules and regulations.

Reference: The Community Voice (Nov. 11, 2022) “Managing probate when setting up your estate”

Do Unrecorded Deeds Help or Hurt Estate Planning?

Using an unrecorded deed to transfer property without probate sounds like an easy way to transfer ownership of the family home, but is it asking for trouble? That’s the topic of an article from NWI Times entitled, “Estate Planning: Are unrecorded deeds a good idea?” The fact that the idea came from a family’s attorney makes the question even more important. The attorney told the parents the children could record the deed after their deaths and transfer the property without probate.

Most estate planning attorneys haven’t seen this technique used in a long time, and some may never have heard of it. There’s probably a good reason for this—it’s an estate mess waiting to happen.

First of all, what if the deed itself goes missing? One of the most common questions estate planning attorneys hear is “What do I do because Mom lost the_____?” Fill in the blanks—the deed, the title to the car, the bank statement, etc. Important documents often get lost. If a deed is missing and can’t be recorded, title can’t be transferred. Hoping an important piece of paper doesn’t get lost is not an estate plan.

Until the deed is recorded, and title transferred, the holders of the title still own the property. They can mortgage the property or sell it. The plan for the children to receive and record the deed may not have legal authority.

Laws about how deeds must be created change. Indiana made a change to the law in 2020 that required signatures on deeds to be witnessed. Without the witness, the deeds can’t be recorded. If the adult child is holding a deed for the recording and it’s not witnessed because the parents have died, it can’t be recorded.

There are better ways to transfer ownership of the family home that adhere to the general principles of estate planning.

There are also different types of deeds that are more commonly used in estate planning to transfer home ownership without going through probate. One is a Transfer on Death Deed (TOD Deeds). A TOD deed allows a person to name beneficiaries on their real estate property without giving up any rights of ownership. The TOD deed is recorded, so there’s no worry about mom or pop losing the paperwork.  The TOD deed can also be changed by recording another deed or using an affidavit.

Trusts can also be used to transfer home ownership and keep the transaction out of probate. An estate planning attorney will be able to explain the different types of trusts used to transfer a home. State laws vary, and allowable trusts vary, so talking with a local estate planning attorney is the best option.

Reference: NWI Times (May23, 2021) “Estate Planning: Are unrecorded deeds a good idea?”

Retirement Account Beneficiary Choices and Your Estate

A designated beneficiary is the person named on a retirement or investment account to inherit the asset if you die. That’s the simple part. What gets complicated is when people don’t think it’s such a big deal, says a recent article “5 Mistakes To Avoid With Retirement Account Beneficiary Selections” from Forbes. Mistakes made about beneficiaries can be costly and sometimes, unfixable. You could accidently disinherit a child or leave money to an ex-spouse.

Even if you have done all the right estate planning, mistakes with beneficiaries can happen. Just remember this very simple fact: your will does not control your retirement accounts and it may not control any accounts where you have been asked to name the person who inherits the asset, like a life insurance policy.

A will can also push your estate into the probate process, which can have some significant pitfalls. If you have a living trust but neglect to fund it, the assets left outside of the trust might also have to go through probate. The best way for most people to pass assets like retirement accounts is to have them go directly to a beneficiary.

Other accounts that pass via beneficiary designation are usually 401(k)s, IRAs, Roth IRAs, life insurance, annuities, and investment accounts that have Transfer on Death (TOD) options. Using beneficiary designations may allow your heirs to receive assets in a tax-efficient and fast manner.

What are the top five mistakes people make for beneficiary designations?

Forgetting to name a beneficiary. This happens very commonly when people are young adults. It’s hard to imagine needing to name an heir when you are young and healthy, but not naming anyone creates headaches.

Ignoring special circumstances. When you have an heir with an addiction problem, one who has trouble managing money or who is preparing to leave a marriage, leaving them a large sum of money can create more problems. If your loved one has special needs and receives benefits from the government, an inheritance could put all their aid at risk. An estate planning attorney can help create a Special Needs Trust and plan for their future.

Using the wrong name. It sounds silly, but it happens often. If your loved one’s name is Jane Doe, or there are family members with very similar names, you’ll need to use more information to identify them, like birthdates, Social Security numbers and even details about their relationship to you. Not providing enough clear information, could send your asset into the wrong hands.

Neglecting to update your beneficiaries. The person you name as your beneficiary when you are in your 30s, may not be the same person you want to inherit your assets in your 60s. If you have remarried, you must change all beneficiary designations to protect your current spouse. If you have had children or additional children since you first purchased a life insurance policy, you’ll need to be sure that all your children are named on that policy. Every few years, just as you need to review your estate plan, you need to update your beneficiaries.

Failing to discuss your beneficiaries with your estate planning attorney, tax, and financial advisor. There are complications that can occur with an inheritance. Being pushed into a higher bracket sounds like a nice problem to have, until the tax bill comes due. Your estate planning attorney will be able to work with you and your loved ones to protect your legacy and their future.

Reference: Forbes (Oct. 25, 2020) “5 Mistakes To Avoid With Retirement Account Beneficiary Selections”

Estate Planning for Unmarried Couples

For some couples, getting married just doesn’t feel necessary. However, they don’t enjoy the automatic legal rights and protections that legally wed spouses do, especially when it comes to death. There are many spousal rights that come with a marriage certificate, reports CNBC in the article “Here’s what happens to your partner if you’re not married and you die.” Without the benefit of marriage, extra planning is necessary to protect each other.

Taxes are a non-starter. There’s no federal or state income tax form that will permit a non-married couple to file jointly. If one of the couple’s employers is the source of health insurance for both, the amount that the company contributes is taxable to the employee. A spouse doesn’t have to pay taxes on health insurance.

More important, however, is what happens when one of the partners dies or becomes incapacitated. A number of documents need to be created, so should one become incapacitated, the other is able to act on their behalf. Preparations also need to be made, so the surviving partner is protected and can manage the deceased’s estate.

In order to be prepared, an estate plan is necessary. Creating a plan for what happens to you and your estate is critical for unmarried couples who want their commitment to each other to be protected at death. The general default for a married couple is that everything goes to the surviving spouse. However, for unmarried couples, the default may be a sibling, children, parents or other relatives. It won’t be the unmarried partner.

This is especially true, if a person dies with no will. The courts in the state of residence will decide who gets what, depending upon the law of that state. If there are multiple heirs who have conflicting interests, it could become nasty—and expensive.

However, a will isn’t all that is needed.

Most tax-advantaged accounts—Roth IRAs, traditional IRAs, 401(k) plans, etc.—have beneficiaries named. That person receives the assets upon death of the owner. The same is true for investment accounts, annuities, life insurance and any financial product that has a beneficiary named. The beneficiary receives the asset, regardless of what is in the will. Therefore, checking beneficiaries need to be part of the estate plan.

Checking, savings and investment accounts that are in both partner’s names will become the property of the surviving person, but accounts with only one person’s name on them will not. A Transfer on Death (TOD) or Payable on Death (POD) designation should be added to any single-name accounts.

Unmarried couples who own a home together need to check how the deed is titled, regardless who is on the mortgage. The legal owner is the person whose name is on the deed. If the house is only in one person’s name, it won’t become part of the estate. Change the deed so both names are on the deed with rights of survivorship, so both are entitled to assume full ownership upon the death of the other.

To prepare for incapacity, an estate planning attorney can help create a durable power of attorney for health care, so partners will be able to make medical decisions on each other’s behalf. A living will should also be created for both people, which states wishes for end of life decisions. For financial matters, a durable power of attorney will allow each partner to have control over each other’s financial affairs.

It takes a little extra planning for unmarried couples, but the peace of mind that comes from knowing that you have prepared to care for each other, until death do you part, is priceless.

Reference: CNBC (Dec. 16, 2019) “Here’s what happens to your partner if you’re not married and you die”

How Do I Title My Property Correctly for My Estate Plan?

The way by which you title your real and personal property and who you name as your beneficiaries is just as important in your estate planning as your will or trust, says The Black Hills Pioneer’s recent article, “Titling of property is just as important as your Will or Trust.”

There are some kinds of property that, depending on how they are titled or who’s the named beneficiary, will flow outside your will or trust.

For instance, if you designate a beneficiary to your life insurance policy or on your retirement account, that money goes directly to the named beneficiary at your death—not in accordance with your will or trust (provided you haven’t named your estate or trust as the beneficiary).

In addition, you could designate another person as payable on death (POD) designee or transfer on death (TOD) designee on your investment account or your bank account. These types of accounts also transfer automatically to the named designee and not with any regard to your will or trust (unless you named your estate or trust as the beneficiary).

Any jointly owned real estate will typically flow to the surviving joint owner, not pursuant to your will or trust. However, the fact that two people own one piece of real estate doesn’t mean the property will flow automatically to the survivor. It depends on how the property is titled. For example, in South Dakota, language needs to be included in the deed conveying that real estate to both individuals as “joint tenants with rights of survivorship.”

You can, therefore, see how critical it is that you discuss these issues with your estate planning attorney. In addition to questions about wills and trusts, you should also be discussing the titling of your property and the beneficiaries you’ve named on your life insurance and retirement accounts, along with any POD and TOD designees you’ve named on your investment accounts or bank accounts.

If you don’t, you create problems for you family and loved ones.

Reference: Black Hills Pioneer (August 5, 2019) “Titling of property is just as important as your Will or Trust”

What is a Transfer on Death (TOD) Account?

Most married couples share a bank account from which either spouse can write checks and add or withdraw funds without approval from the other. When one spouse dies, the other owns the account. The dead spouse’s will can’t change that.

This account is wholly owned by both spouses while they’re both alive. As a result, a creditor of one spouse could make a claim against the entire account, without any approval or say from the other spouse. Either spouse could also withdraw all the money in the account and not tell the other. This basic joint account offers a right of survivorship, but joint account holders can designate who gets the funds, after the second person dies.

Kiplinger’s recent article, “How Transfer-on-Death Accounts Can Fit Into Your Estate Planning,” explains that the answer is transfer on death (TOD) accounts (also known as Totten trusts, in-trust-for accounts, and payable-on-death accounts).

In some states, this type of account can allow a TOD beneficiary to receive an auto, house, or even investment accounts. However, retirement accounts, like IRAs, Roth IRAs, and employer plans, aren’t eligible. They’re controlled by federal laws that have specific rules for designated beneficiaries.

After a decedent’s death, taking control of the account is a simple process. What is typically required, is to provide the death certificate and a picture ID to the account custodian. Because TOD accounts are still part of the decedent’s estate (although not the probate estate that the will establishes), they may be subject to income, estate, and/or inheritance tax. TOD accounts are also not out of reach for the decedent’s creditors or other relatives.

Account custodians (such as financial institutions) are often cautious, because they may face liability if they pay to the wrong person or don’t offer an opportunity for the government, creditors, or the probate court to claim account funds. Some states allow the beneficiary to take over that responsibility, by signing an affidavit. The bank will then release the funds, and the liability shifts to the beneficiary.

If you’re a TOD account owner, you should update your account beneficiaries and make certain that you coordinate your last will and testament and TOD agreements, according to your intentions. If you fail to do so, you could unintentionally add more beneficiaries to your will and not update your TOD account. This would accidentally disinherit those beneficiaries from full shares in the estate, creating probate issues.

TOD joint account owners should also consider that the surviving co-owner has full authority to change the account beneficiaries. This means that individuals whom the decedent owner may have intended to benefit from the TOD account (and who were purposefully left out of the Last Will) could be excluded.

If the decedent’s will doesn’t rely on TOD account planning, and the account lacks a beneficiary, state law will govern the distribution of the estate, including that TOD account. In many states, intestacy laws provide for spouses and distant relatives and exclude any other unrelated parties. This means that the TOD account owner’s desire to give the account funds to specific beneficiaries or their descendants would be thwarted.

Ask an experienced estate planning attorney, if a TOD account is suitable to your needs and make sure that it coordinates with your overall estate plan.

Reference: Kiplinger (March 18, 2019) “How Transfer-on-Death Accounts Can Fit Into Your Estate Planning”

How Can I Goof Up My Estate Plan?

There are several critical errors you can make that will render an estate plan invalid. Many of these can be easily avoided, by examining your plan periodically and keeping it up to date.

Investopedia’s article, “5 Ways to Mess Up Estate Planning” gives us a list of these common issues.

Not Updating Beneficiary Designations. Be certain those to whom you intend to leave your assets are clearly named on the proper forms. Whenever there’s a life change, update your financial, retirement, and insurance accounts and policies, as well as your estate planning documents.

Forgetting Key Legal Documents. Revocable living trusts are the primary vehicle used to keep some assets from probate. However, having only trusts without a will can be a mistake—the will is the document where you designate the guardian of your minor children, if something should happen to you and/or your spouse.

Bad Recordkeeping. Leaving a mess is a headache. Your family won’t like having to spend time and effort finding, organizing and locating your assets. Draft a letter of instruction that tells your executor where everything is located, the names and contact information of your banker, broker, insurance agent, financial planner, attorney etc.. Make a list of the financial websites you use with their login information, so your accounts can be accessed.

Faulty Communication. Telling your heirs about your plans can be made easier with a simple letter of explanation that states your intentions, or even tells them why you changed your mind about something. This could help give them some closure or peace of mind, even though it has no legal authority.

Not Creating a Plan. This last one is one of the most common. There are plenty of stories of extremely wealthy people who lose most, if not all, of their estate to court fees and legal costs, because they didn’t have an estate plan.

These are just a few of the common estate planning errors that happen. For more information on how to be certain your assets will be dispersed according to your wishes, talk with a qualified estate planning attorney.

Reference: Investopedia (September 30, 2018) “5 Ways to Mess Up Estate Planning”

Here’s What to Know About Money, if You’re in Your 50s or 60s

First, some good news: when you reach 50, you can begin making catch-up contributions to your retirement accounts. You can add an extra $6,000 to your 401(k) this year and $1,000 to an IRA or Roth. Small business owners, contractors, and those with freelance income can potentially save $61,000 in a solo 401(k). Note that limit is for all of your 401(k) accounts each year.

Two Cents’ recent article, “What to Know About Money in Your 50s and 60s,” adds that if your kids are out of the house and that house is maybe even paid off (or close to it), you can move some of that extra savings toward your retirement accounts. According to Forbes, even $1,000 extra in an IRA can make a huge difference, if you contribute it every year between 50 and 67. For example:

• 5% annual return: $26,000
• 7% annual return: $31,000
• 10% annual return: $41,000

To see if you’ll have enough retirement savings, take your total income…

• Less any contributions to retirement accounts
• Less any expenses that will go away in retirement
• Plus, any added expenses you’ll have when you’re retired
• Less taxes (estimate high, as taxes will likely to go up, not down)

That gives you your rough total.

If it’s a long way from the budget you’ve been living on, dig deeper and you can see where to make improvements.

Your 50s are the critical time, when preparing for retirement. Review your savings to see the mix of tax categories on your investments: pre-tax, post-tax, and tax-free.

If you have almost all your savings in pre-tax accounts, which decreases the flexibility to pay for retirement, consider building up after-tax and tax-free savings, so you have more flexibility once you retire. This may include investing in a Roth IRA. Consider a backdoor Roth conversion, if you make too much to contribute to a regular Roth. If you’re taking qualified withdrawals (the account’s been open for at least five years and you’re 59½ or older), then your taxes won’t be impacted in retirement, which can be a helpful strategy.

Next, if you’ve made a will already, you should check to ensure that you’ve titled your assets properly. For example, on a bank or brokerage account, you can add beneficiaries to that account, called a Transfer on Death (TOD). This works the same as adding beneficiaries to an IRA account or a retirement plan. Titling your assets properly, lets you avoid probate. It’s a faster and cheaper transfer.

Now is the time to also think about when you’ll claim Social Security. While you can claim Social Security as early as 62, it’s better financially to wait to take Social Security until you’re 70. That’s because the payout—both the monthly and over time—will be higher. However, this option isn’t for everyone. It’s one to be made with your spouse, considering your retirement plans and how much you’ve managed to save.

Reference: Two Cents (August 17, 2018) “What to Know About Money in Your 50s and 60s”

When the Unexpected Medical Diagnosis Happens to You

Instead of giving into blind panic when receiving the news of a devastating medical diagnosis, CNBC’s recent article, “When end-of-life planning is suddenly a lot closer than you thought,” offers some thoughts on how to start charting your finances.

Estate planning can sometimes be triggered by an emotionally charged event, like an unexpected diagnosis. Even in this tough situation, you need to do estate planning.

One way to get organized is to set up a ringed-binder notebook so you can easily add information. This will allow you to have all the information in one place. Therefore, your family won’t stress about trying to find things.

If you don’t have an up-to-date will, make a list of your assets, such as your financial accounts, real estate and retirement accounts.  You should also make a list of personal belongings and who you’d like to have them, because this isn’t spelled out in a will.

Next, be sure to designate beneficiaries on your financial accounts. Many brokerage firms allow you to attach transfer-on-death instructions to your non-retirement accounts. Transfer-on-death deeds can also be used on real estate in 27 states, including Arizona, Illinois, Indiana, Ohio, Texas and Washington, D.C. Exceptions to the use of these deeds include Connecticut, Florida, New Jersey, Pennsylvania, and New York.

You should next list your liabilities, such as your home mortgage, loans, credit card debt and your insurance policies for health, home, and autos. Create a contact list of people your family can reach for help, like your attorney, CPA, insurance agent, and financial advisor.

If you already have an estate plan in place, it can be a good idea to consult with an attorney experienced in estate planning, if you’re hit with some dire news. That may alter some of your thinking.

Keep all your passwords in the binder.  You should also monitor your pension and Social Security benefits, since there could be survivor benefits.

Your binder should always include a copy of the previous year’s tax return.

Finally, include arrangements for your pets and list all service agreements, like landscaping and utilities.

Reference: CNBC (July 18, 2018) “When end-of-life planning is suddenly a lot closer than you thought”

Check Those Beneficiary Designations

Beneficiary designations have precedence over wills.  Therefore, if you have accounts with assets to pass on to heirs, be sure to update them regularly.

CNBC’s recent article, “Out-of-date beneficiary designations are a common and costly mistake,” says that naming beneficiaries can come with unexpected costs, like deeding money to an irresponsible minor. Many people still have ex-spouses or deceased relatives named as a beneficiary on a retirement account or on a life insurance policy purchased long ago.

That is why it is critical to review these after marriages, divorces, births, adoptions, deaths, and other major life events.

Beneficiaries for some retirement accounts can be easily reviewed and changed online. For others, the account holder just has to ask for the right form from the administrator.

If you don’t have any named beneficiaries—either because you never named them or your beneficiaries pre-deceased you—your assets may pass to your estate or be forced to go through probate. This can create expenses and headaches.

If your IRA winds up going to your estate, instead of to a named beneficiary, the estate can be forced to withdraw funds and pay the tax on those withdrawals in a short time.

In addition to traditional, Roth, SIMPLE and SEP IRAs, beneficiaries should be checked on 401(k) plans, 403(b), and deferred-compensation employer plans, life insurance policies, 529 education savings accounts, and any bank or other investment account that’s designated as "Transfer on Death."

Naming a minor child or other person incapable of managing funds, is another possible mistake.

Giving money to a high earner, who’s then pushed into a still-higher tax bracket could be another problem you should try to avoid.

Reference: CNBC (April 17, 2018) “Out-of-date beneficiary designations are a common and costly mistake”