ESTATE PLANNING & PROBATE RESOURCES FOR PROSPECTIVE CLIENTS
Frequently Asked Questions
Avoiding probate is just one of the many possible benefits of creating a revocable trust. A revocable trust allows for you to account for your assets during your life, addressing how your trust assets are protected during various situations that an individual may face in their lifetime (i.e. during periods of disability, upon the death of the first spouse, etc.) A typical Will merely addresses what happens to one’s assets upon their death, and does not account for how assets are handled during life. By having measures in place to handle one’s assets in the event of incapacity or other situations that a Will does not address, a revocable trust is a more effective planning tool that evolves with the trustmaker throughout their life. Additionally, sentimental assets such as real estate and tangible property can be conveyed into the trust during your life, avoiding probate at the trustmaker’s death and allowing for the trustee to distribute such assets to their beneficiaries much sooner than had they passed under a Will.
The cost of creating a revocable trust outweighs the potential costs of the probate process and other costs that one may incur if a revocable trust is not in place. In Massachusetts, the probate period spans for at least one year, allowing such time for creditors to make their claims against an estate. Probate costs are case specific, but usually include attorney’s fees, personal representative’s fees, accountant’s fees, etc., which add up over the course of a year (or longer) and can range from 1-5% of the value of the estate. Although you may be paying more money upfront for the creation and funding of a revocable trust, you will save more money in the long run if your revocable trust affords you the ability avoid a long probate process. Additionally, trusts are private and the probate process is not. The probate process requires providing notice to all interested parties (those named in the will and those that would be entitled to inherit). The trust is private and is rarely filed with the court and only the beneficiaries have a right to certain information about the trust. The privacy of the trust, reduces claims by remote beneficiaries.
The Power of Attorney document allows someone to legally act on your behalf while you’re still alive, making it one of the most important documents you’ll ever sign! If you have not created a Power of Attorney, the only way for another person to gain the authority to act on your behalf is by going to court to obtain a conservatorship, not the best option if you are temporarily incapacitated during an accident, and have children, a business, or other affairs that might need your attention.
While a Power of Attorney is a straightforward document for your estate planner to create, we have found that many institutions, especially banks, change their own Power of Attorney rules frequently, and are usually inconsistent when applying those rules. TIAA CREF, Fidelity, Schwab and others, actually “require” the Power of Attorney be written on their own forms, even if your existing Power of Attorney conforms to Massachusetts statutory law! Ultimately, these conforming non-institutional Powers of Attorney are accepted by these financial institutions after their legal department reviews them and provides an opinion. But this is often a long process and the outcome is not guaranteed.
We HIGHLY recommend that you “test drive” your Power of Attorney before it actually needs to be used. How do you do this? Ask your designated Attorney in Fact take your executed document (original and/or copy) to your financial institution to make sure the institution accepts it without issue. If it does not, be sure to get the institution to outline exactly what is missing or insufficient with your document, and contact us as soon as possible to get everything in order! We know you would rather find out now, than when there is a crisis.
Revocable trusts do not offer asset protection, since there are no restrictions on the trustmaker’s to access the trust assets. If an individual would like to protect their assets, the use of a different estate planning tool would be suggested including various forms of irrevocable trusts. Irrevocable trusts provide asset protection since the trustmaker usually may not serve as the trustee and usually is also not the beneficiary and due to this lack of control, creditors have difficulty in reaching those assets. Life Insurance Trusts (“ILITs”) are an effective way to protect life insurance benefits and reduce your overall estate value to reduce estate taxes. For clients who have rental properties or business assets they want to protect, LLC’s can be created to protect the client assets from claims made by creditors stemming from the assets owned by the LLC.
Extremely valuable tangibles, financial or emotional, should be incorporated into your Will or Trust as specific distributions. Tangibles that could cause conflicts in the family should also be written specifically into your plan, to avoid claims of fraud or abuse. However, for most of us, and for the majority of our tangibles, they do not fall under such categories. A Tangible Personal Property Memorandum is a wonderful vehicle to simply, and legally, leave personal property to your loved ones. It is simple to complete because it does not have to be signed in the presence of witnesses or a notary public. It can be changed over time, crossed out, added to, updated, thrown away. A signature and a date (to be able to easily identify the most-recent version), is all that is necessary. It also allows you to leave tangible personal property to anyone that you want – even if the person is not a beneficiary under the rest of your plan. You may have a neighbor who really loves a painting in your house, or a sibling that you want to leave your grandfather’s watch to, or maybe everything is going to your kids and you want to make sure that your daughter receives your favorite earrings (and not your son’s wife!).
With technology’s rapid advancements, we have become more accustomed to keeping many of our assets online, via social media, email and other web-based storage. Although you may not think about these as “assets”, it will be important to your loved ones to have access to these accounts upon your death or disability.
Part of the Eckert Byrne LLC Life and Legacy Planning Process is to deal with the issue of control of your digital assets, digital accounts and passwords, and digital legacy ahead of time. We provide worksheets and take you through a managed process for taking these issues off the table, so they are handled in the way you choose, and so they don’t become a problem or source of conflict for your loved ones, whether on Facebook or other services.
Many client plans incorporate the use of ongoing trusts to oversee distributions to the beneficiaries, whether it be until a certain age or for life. The trustee is tasked with approving distributions to beneficiaries and making sure that the distributions are allowed under the terms of the trust. This relationship can often be a difficult one, especially if the beneficiary and trustee do not have a good relationship and open communication. If a beneficiary is denied access to trust assets, the beneficiary may blame the trustee, and this may strain the relationship even more.
After making decisions about who will handle your estate and who you intend the beneficiaries of your estate to be—there is one more vital conversation to be had. This conversation should be one between you, your designated trustees and your beneficiaries. Although this relationship may not seem important now, building a relationship between trustees and beneficiaries will help in the administration of your estate. You should discuss your intentions around why you created the plan. What were your thoughts in designating these beneficiaries? Why did you choose the trustees? What do you hope their relationship will be like? Communicating your thoughts about the plan, and opening a line of communication between the trustees and beneficiaries is one of the final and most important steps in the estate-planning process.
When you have minor children, a Will is extremely important in order to name a guardian for your children. The guardian handles the day-to-day care and custody of the child. Minor children are unable to inherit most property and assets directly. Therefore, under a Will-based plan, a conservator would need to be appointed through the court to oversee the child’s assets until the child turns 18, at which time the child will receive any balance of the assets outright. The conservator, who may or may not be the same person as the guardian, must account to the court, on an annual basis, every single penny earned on the assets, and every single penny spent. The accounting process is cumbersome and expensive. Typically, the conservator must hire an attorney to assist him/her, which cuts into the assets set aside for the minor child. Additionally, the child must have a disinterested third-party attorney represent his/her interests (called a guardian ad litem). The guardian ad litem scrutinizes the account to ensure that everything on the account is true and accurate. The guardian ad litem is another expense paid for out of the child’s assets, as is the attorney for the conservator.
Due to the cost of the conservatorship, a Will-based plan is the least cost-effective plan for clients with minor children. Also worth noting, is that all probate court documents and financial information is public record, so this is not ideal for parents with privacy concerns. Additionally, most parents do not want their children receiving assets outright at age 18, and prefer to set a higher age for the child to have full access and control of their assets. This is why our clients commonly choose to create a revocable trust, so that they can distribute assets to their minor children upon their deaths under the terms they have created during their lives. Instead of a conservator, the Trust would oversee the assets, allowing for assets to pass outside of the court and the public eye. The Trustee, appointed by the clients, will manage the assets and make distributions for the minor child’s needs. Such a Trustee may be a loved one, friend, trusted advisor, and may or may not be the same person as the guardian named under the Will. Parents are in control of setting the age that their children may receive their assets outright, if ever. (If there are creditor concerns, or a possible divorce for your child, holding assets in trust indefinitely can help protect their inheritance.) The flexibility of the Trust is attractive to most parents, is easy to set up, and is typically less expensive overall than a Will-based plan with a conservatorship appointment.
Estate Planning For Young Adults
No! Retirement accounts, like a 401(k), 403(b), or Individual Retirement Account (IRA), must stay in your individual name and an RLT cannot be the owner of such account. If you were to change the ownership to a Trust, the retirement account would have to be cashed out, and a trust-owned non-retirement investment account would have to be opened. This would result in early withdrawal penalties (if you were under 59 1/2 at the time), income taxes (for non-ROTH accounts), and the loss of opportunity for tax-free growth during your life – so all in all a complete disaster! You may name a Trust as a beneficiary of a retirement account, but this should be carefully considered to ensure the Trust qualifies as a designated beneficiary.
An ILIT is an irrevocable trust created to own certain life insurance policies outside of your estate. You, as the grantor, create the ILIT, which owns your policy. You do not maintain control over the policy and your selected Trustee is effectively the owner.
As you are no longer the owner of the policy the death benefit is outside of your estate for tax purposes. You (grantor) remain the insured, which means your death triggers the death benefit being paid to the trust.
The Trustee(s) of your ILIT must:
- maintain the policy
- manage an ILIT checking account
- accept gifts from you for the premium payments
- provide notice to the lifetime beneficiaries of the gift and their right to withdrawal the gift
- timely pay the premium each year
- at your death, collect the life insurance proceeds and distributes the proceeds in accordance with the ILIT’s terms.
ILITs are used to solve for the goal of reducing estate taxes and providing liquidity, to ensure the most amount of money passes to your beneficiaries. The amount of insurance that may motivate someone to create an ILIT can vary depending on the circumstances. But typically the death benefit amount is either: large enough to create a Massachusetts estate tax ($1m+), large enough to further increase an already Massachusetts taxable estate ($1+m), and/or large enough to further increase a federally taxable estate ($11.2m for an individual or $22.4m for a married couple) where beneficiaries are at risk of losing up to 56% of the death benefit proceeds to federal (40%) and MA (16%) estate taxes.
If you are not concerned with tax planning and already have liquidity in your estate, then you may not benefit from an ILIT.
The most straightforward reason to update an outdated estate plan is to include any desired changes in an individual’s family or to change any beneficiaries. An estate plan created some 20 years ago is likely to need updating for people who have both come and gone that the client would like to include or remove from the old plan. Estate Planning lawyers often find that their clients are surprised to review an old plan and see who it was they assigned for what. It could be worth it to review the plan and update it simply to include a new beneficiary or assign a new beneficiary if a prior one has passed away.
In 2012, Massachusetts adopted the Uniform Probate Code, which was the first true overhaul of state probate laws (some of the laws dated back to the inception of the Commonwealth). Therefore, it is clear that many of the laws governing an estate plan created 20+ years ago would be outdated and a revision could/should be made in order to comply with the updated laws. Here is a link summarizing many of the changes that would be of interest to the general public: http://www.lexology.com/library/detail.aspx?g=e9e5f56b-0915-4aef-829c-a760b835acdc. For example, the adopted Model Uniform Probate Code increased the size of the surviving spouse’s intestacy share by a considerable amount – from the article: If the decedent is not survived by any descendant or parent, the surviving spouse now takes the entire probate estate. This is a huge change from previous probate law. Furthermore, if the plan was created 20+ years ago, modern tax laws are likely to be entirely different from the ones in place when the plan was created. For example, current Federal Estate Taxes and Exemptions are 40% tax and up to $5,450,000 in exemptions, whereas 20 year ago in 1997, those numbers were 55% tax and only $600,000 in exemptions. https://www.thebalance.com/exemption-from-federal-estate-taxes-3505630. These numbers can be important for structuring a plan, so having an updated estate plan to account for tax laws is very important. In 2003, Massachusetts adopted its own estate tax, separate from the federal estate tax; so, any 14+ year old estate plan would want to be updated to adjust for this change in law.
Another important consideration when deciding whether to update an estate is the client’s current financial situation. Often times when an estate plan is out of date, the client may now be in a very different financial situation. It would be important to update the estate plan to include any financial changes that may have occurred in order to avoid any new assets being sent through the probate process. Also, some financial institutions do not accept power of attorney documents that are “stale” or of a certain age. While the document is still technically legally binding, some institutions have internal policies that outline how old a power of attorney can be for them to accept it. Additionally, some healthcare providers are reluctant to accept old health care proxies because they want to make sure that the person being cared for is receiving the care they intended to receive. Updating these documents is important for clients with estate plans that are outdated.
You hear it time and time again…you have probably even said it at some point in your life, “I want to avoid probate!” I find that few people understand exactly what that phrase means. And fewer understand the true impact of probate avoidance, or why they want to avoid probate.
As you learned in Series 1 of this installment, probate is the court process of administering someone’s probate estate at death – either under the direction of a decedent’s Will or the intestacy laws. Probate can be avoided or reduced through restructuring one’s assets. For example, naming beneficiaries on bank accounts, investment accounts, retirement accounts, stocks, and life insurance; adding a joint owner to an asset with rights of survivorship; or, creating a revocable living trust and transferring title of your house or other assets into the trust during your life. These are easy ways to restructure your assets from ‘probate’ assets to ‘non-probate’ assets. These ‘non-probate’ assets will pass immediately at your death to the beneficiary or joint owner outright, or to the then-serving trustee of your revocable trust to be distributed and administered in accordance with the terms of the trust.
I will admit it – I am a huge proponent of avoiding probate for most circumstances. In many situations, using beneficiary designations or creating a revocable trust is the easiest way to distribute assets at death, without getting the court involved in the administration. Probating an estate can be expensive, time-consuming, and frustrating. It requires court involvement and your assets and Will are made public. I think there are many compelling reasons to avoid probate. However, this is not a ‘one size fits all’ analysis.
For those without a revocable trust, probate avoidance is nearly impossible if you have assets like a house or a car – where there is no ability to designate a beneficiary. In addition, if you have minor children then you would absolutely not want to name a minor child as beneficiary on your investment account or life insurance policy (a greater discussion outside the scope of this series – but trust me!), since that minor child is unable to own property directly under the age of 18. If you do not have a revocable trust, and are relying on your Will to distribute your assets to your loved-ones in the percentages you desire, then you want a probate at your death to make sure that your intent is carried out.
Imagine you create a Will and decide you want to leave all of your assets to your four children, equally. Your oldest son asks you to add him as joint owner on all of your bank accounts, “To make things easier for you; to help pay the bills, cash checks, etc.” Little did you realize that adding your son as a joint owner overrides the terms you outlined in your Will. During your life, if your son files bankruptcy or has a credit claim against him or gets divorced, it will bring that account – your account – into your son’s litigation. When you die, those bank accounts become your son’s accounts – he owns them and can immediately access them. Your other children could sue their brother for their ‘rightful share’ but how much will litigation cost? What if your son spends the money before his siblings even realize it was there? Or maybe you did intend for those assets to pass directly to your son, but there was no evidence indicating this and you never had this discussion with your other children. It all gets very messy, very quickly.
Another issue is the payment of expenses and taxes. If you name direct beneficiaries or add someone as a joint owner, it is going to be very hard for your Personal Representative to get money back from that beneficiary to help pay taxes, funeral expenses, credit card debt, etc., after you die. Once someone gets an asset, they are very reluctant to give it up. It can put the estate at unnecessary risk of being insolvent and create an administration nightmare.
Before deciding if you want to avoid probate, or even should avoid probate, you need to be very clear on what you have (assets and debts), how you own your property, and how you want it to pass to your loved ones. In some situations, probate avoidance is ideal. In other situations, it can completely be counter to your goals and your existing estate plan. And when in doubt, contact me or your estate planning attorney to discuss your specific circumstances.
The court process of “probate” that we will discuss in this article only deals with a person’s “probate” property and the Massachusetts Probate Courts do not have authority over or even care to know about “non-probate” property in most circumstances. So, in order to fully understand probate, I think it is imperative we first understand “probate” versus “non-probate” property.
Generally, probate property is 1) individually owned, and 2) has no designated beneficiary. Probate property is often the surviving spouse’s real estate, or someone’s individual checking account, or a car (all individually owned). Retirement assets often have a named beneficiary, or the beneficiary is determined under the plan, and is therefore generally not probate property (because although it is individually owned, it has a designated beneficiary). A joint checking account between spouses or a parent and child is also not probate property (because the asset is not individually owned and immediately passes to the surviving account owner at death). Assets owned by someone’s revocable living trust are also not probate property (because the asset is not ‘individually’ owned).
At death, your loved ones will need to determine what “probate” property you own, if any. This will be pretty apparent as jointly owned property will be accessible by the surviving owner, assets with beneficiary designations will be distributed directly to the named beneficiary, and trust assets will be accessible by the successor Trustee. With probate property, your loved ones will, in a sense, hit a wall and be refused access to the asset. Someone (a bank teller, financial advisor, the registry of deeds) will hold up a stop sign and say – “STOP! You cannot proceed without court appointment or approval.” Once your loved one hits this ‘wall,’ they will immediately realize the need for court involvement (in other words – probate!).
The need for court involvement or probate does not have anything to do with whether or not someone has a Will. I repeat, the need for court involvement when someone dies with probate assets has nothing to do with whether or not she has a Will! I am a huge fan of the Wizard of Oz and I often think of probate as the yellow brick road. Who is traveling on the yellow brick road? Your loved ones – whoever would help administer your probate property at your death (maybe a spouse, child, close friend, or attorney). Where does the yellow brick road lead? Why to the Emerald City of course! And who is at the Emerald City? Oz…I mean, the probate judge. While traveling on the yellow brick road towards the Emerald City, which is the only route when dealing with probate assets, your loved one may encounter friends, allies, apple-throwing trees, maybe even a flying monkey or two. Who she encounters while traveling on the yellow brick road is dependent on many factors, such as whether or not you had a properly drafted Will, whether your family is contesting the Will, or whether you had no Will at all. So, although in any case your loved one is traveling on the yellow brick road to get to the Emerald City, how easy the path (how many flying monkeys swoop in to cause havoc), will be entirely dependent on your Will and your family (not to say that Oz never blows some smoke and fire into the mix).
So, what will your loved ones encounter on the yellow brick road? Well, if you have a Will, your nominated Personal Representative will need to file the Will with the probate court and request appointment through the court as the Personal Representative. If you have no Will, then someone with priority as determined under the law (such as a spouse or child), will request appointment as the Personal Representative. If there is little probate property (under $25,000 in cash, and/or a car), then your Personal Representative will travel on the yellow brick road at turbo speed and get to the Emerald City in no time! If there are more assets, or more complexities, then your Personal Representative will need to proceed with either an informal or formal probate. There are many factors that are involved when deciding which option (formal or informal) to choose. Personal Representatives often hire attorneys to assist in this process and ensure the yellow brick road is as bump-free as possible.
Once appointed, your Personal Representative will be given the authority to access your probate assets, and is tasked with administering them – paying your last bills, creditors, and then ultimately distributing the balance of your probate assets, if any, to those you have named in your Will (i.e. the devisees), or your heirs as determined by Massachusetts laws (if you have no Will). The yellow brick road is long, windy, riddled with unexpected turns, but your Personal Representative will eventually get to the Emerald City. It takes at least a year, but the road is often smooth and calm during that time. If you die without a Will, the probate path (the yellow brick road) may be more difficult for your Personal Representative, and who ultimately receives your property is determined by the laws of Massachusetts (i.e. your heirs). Your Will acts to override certain defaults in the law, but it does not avoid probate!
Over the next installments in this newsletter series on probate, we will go into further detail about whether we really want to avoid probate, how probate fits into your current estate plan, and what happens if you have no Will.
Please do not hesitate to contact me should you need assistance with probate or your estate plan. Because although the yellow brick road may be great at times….there’s no place like home.
Maybe. Just because you do not have a Will, does not mean you are going to have probate assets at death. For example, if your assets are comprised of a bank account, investment account, retirement account, and stocks, you may have added beneficiary designations on each of these assets. As a reminder, probate property generally is individually owned with no beneficiary designation. Therefore, you can still avoid probate, even if you do not have a Will, by naming direct beneficiaries. If you have a car or real estate, where you cannot name a beneficiary, then yes, those assets would have to pass through probate at your death. Since there is no Will, the law will dictate where those assets go (to your heirs-at-law) and who can administer those assets. It is extremely important to have a Will. This will ensure that if you do have probate assets, the administration is as easy as possible, and your assets are going to the right person(s).
Okay, by now you are certainly sensing a theme…the answer again is “Maybe.” What is an often ENORMOUS hole in someone’s estate plan is the proper ‘funding’ of one’s trust. The concept of funding is retitling assets during your life into the name of your trust or naming the trust as a beneficiary. You can have the most impressive set of trust documents ever created, but that does not mean your assets have been properly funded or tied into that trust. If your assets remain in your individual name, with no beneficiary designation, then your assets will still have to pass through probate at your death. Typically, a trust plan will include a “Pour Over Will.” A Pour Over Will directs that the assets passing through probate and your estate be paid over to the trustee of your trust, and then distributed in accordance with the terms of your trust. Although the estate administration for this may be easier, it does not mean the estate or probate piece is eliminated. In order to avoid probate entirely, your assets must be retitled into the name of the trust or have proper beneficiary designations. If your trust is fully funded, then yes, you can avoid probate. I find that cars are often the one ‘hiccup’ when it comes to probate assets – as they are generally not recommended to be retitled into the trust and there is no ability to name a beneficiary. So, if the car is the only probate asset, then a probate will be necessary (but in Massachusetts, it is a very simple, quick, and inexpensive probate.)
Maybe. If all marital assets are jointly owned by the spouses or have beneficiary designations, then usually there is no probate at the first spouse’s death. But, if any of the assets are individually owned, without a beneficiary designation, then there will be a probate at your death, even if your spouse is living. Keep in mind, how Massachusetts law distributes property at your death and to whom is often surprising! For example, if you are married, have no children, but have living parents, then your parents may be partial beneficiaries of your estate (M.G.L. c. 190B, s. 2-102). If this is not your intention, then you must have a Will to override this default under the law and ensure all assets pass to your spouse.