How To Choose Your Executor or Personal Representative
June 14, 2010
Serving as someone’s executor or personal representative under a Last Will and Testament can be a HUGE job, and may not be right for the faint of heart. Although nomination is commonly considered an honor, there is a lot of work involved, and an executor must have a great capacity for organization, attention to detail, the ability to meet deadlines, and more. You may be tempted to name your favorite sibling or eldest child just to keep from hurting any feelings, but your family and heirs will not be well served if you choose your executor based on emotion rather than ability.
Keeping this in mind, here are 4 things to consider when choosing your executor or personal representative:
- Your executor should be trustworthy. Your executor will be privy to all of your financial secrets: reviewing estate assets, determining your liabilities and paying off creditors, settling outstanding debts, and making distributions to heirs. Chances are you don’t want all that information spread throughout the family or community.
- Your executor should be organized. The person you choose will be in charge of a number of detailed tasks, both large and small. He or she will be making lists of assets, working with your attorney to meet court deadlines, making timely distributions for estate taxes, and more. Missing or being late for one of these many steps can draw out the entire process, costing your heirs both time and money.
- Your executor should be financially savvy. One of the responsibilities of executor is to keep the estate viable (making sure the mortgage and fees continue to be paid) during the probate process. If you have investment accounts you’ll want to ensure they won’t languish and lose their value before they can be distributed to your heirs.
- Your executor should have heart. Although probate is a can be a difficult and detailed process, it is at its core about the people you love. Your executor should have the ability to be caring and compassionate during this emotional time.
If you don’t know anybody you would trust with all of these responsibilities don’t lose faith, there are other options. For example, you can choose a bank or financial institution as your executor, or you can ask your estate planning attorney to recommend a professional fiduciary. The goal is to find someone who will serve you well and work with your attorney to ensure a smooth probate for all involved. Another approach is to create and fund a trust, where the duties after your demise would be handled by your Successor Trustee. However, many of the same concerns that apply to your Executor (if you only have a Will) also apply to your Trustee. Talk to your attorney about choices and the difference between administering a probate estate created by a Last Will and Testament, on the one hand, versus a trust estate created by a Trust, on the other. You may find the talk very helpful.
Another Kind of “Bucket List”: the New “Carry-Over Basis” Rule
January 20, 2010
Among the many changes in tax law to go into effect in 2010 was the change in cost basis for inherited assets. Previously, all inherited assets were “stepped-up” from their original value at date of purchase to their fair market value at date of death. In this way, if inherited assets were sold shortly after death, litttle or no capital gains tax was owed. However, in 2010 inherited assets do not receive this automatic “step-up”; instead they will be valued at the lesser of the decedent’s basis or the fair market value as of date of death. The result is that for decedents dying in 2010, the decedent’s tax basis and the fair market value as of date of death will have to be determined for every asset. As you can imagine, this will cause paperwork nightmares for heirs.
What we suggest is making a list of your assets and their values and tax basis information now, while you are still alive and your memory is fresh. This is not a list that has to be shared with anybody until after your death, but the mere existence of your list of assets will save your family and heirs hours of headaches (and heartache) later on.
If the thought of taking the time and energy to sort through files and records to gather this information makes you want to run for the hills, imagine how your heirs will feel! To ease the burden, try making your list one asset at a time, over the course of many days. However you choose to create your list, you can be sure your heirs will thank you.
(Note: There is some cushion to this harsh new rule: There is an exemption amount of $1.3 million of gain from this carry-over basis rule, and another $3 million exemption applying to assets inherited from a spouse. Any excess, however, will be subject to to the new carry-over basis rule. The duty to allocate this exemption among assets going to different persons will be that of your executor or successor trustee. Choose that person wisely. )
Test Your Knowledge: An Estate Planning Quiz
December 2, 2009
How much do you know about estate plans? And how do you know when you need one?
Many people have a vague feeling that they should execute some kind of estate plan eventually, but think (hope) that they really don’t need one right now. On our blog we spend a lot of time telling people that they do need an estate plan, and they probably need one right now—or yesterday!—and we hope we do a good job of explaining why you need one. But maybe it’s time for you to decide when the time is right. This quiz will help you determine just when (and if) you need to do some estate planning.
1. Do you own a house?
Owning your own home means you have at least one significant asset, which affects your need for planning in a number of ways: First, a piece of property cannot be split between people, it will have to be sold (which can take months or longer) and the proceeds divided among your heirs—often at a loss, especially if the house was undervalued to sell quickly. Second, many people who feel they have “small estates and won’t have to worry about Probate or the estate tax” are surprised when they find that the value of their home does indeed push their estate over the line. Third, if you are married, you may need to make provisions for your spouse if you would like them to be able to continue to live in your home, especially if it is partly your own separate property acquired before marriage.
2. Do you have minor children?
If you have minor children and have not made provisions for them in case of your death or incapacity the court will make decisions about their futures. If there are no suitable family members who are willing to step forward and would be suitable guardians, your children might be placed in the care of foster parents or become wards of the state. That is not a chance you want to take.
3. Do you want your heirs to have to wait months (or years) before receiving an inheritance, diminished by the cost of probate?
Probate is sometimes a long and expensive process. Without a plan in place your assets may have to be probated before they can be distributed. Not only does this often take a long time, but the probate fees (which can be considerable) are taken out of your estate—leaving less for your heirs.
4. Do you know how you want to spend your final moments?
Most people don’t die quickly and quietly at the ripe old age of 98. Most people fall victim to accidents, illness or dementia—unable to make their own health care decisions. Without a healthcare directive or living will that specifically outlines your wishes and instructions for your health care and nominates an agent to carry out those wishes, you could end up in a Terri Schiavo situation—costing your loved ones both financially and emotionally.
(NOTE: There is much that goes into your estate plan decision-making; this is only a partial quiz, and not a planning tool. We suggest meeting with your attorney for an in depth interview to determine what kind of planning will be best for you and your family.)
Procrastination is Not a Planning Tool
May 13, 2009
The number one reason that people die without protecting their assets or their heirs is not that they lack the money to create an estate plan, and it’s not that they don’t know that they need one, or how to create one—It’s procrastination. Most people who die without an estate plan in place do so because they dawdled.
For most of us it’s all too easy to put off thoughts of sickness or death, and all planning for the unlikely—but inevitable—event gets pushed to the wayside. Writer M. P. Dunleavey reminds us in the article Last Things Can’t Wait Till Last that procrastination is not a planning tool and that in actuality, once you buckle down and start, protecting your heirs is not such a difficult process after all; especially if you have the right person helping you.
At our office we agree with Dunleavey’s article to the extent that we want to ensure that you have everything you need to best protect your assets and your heirs without making it unnecessarily complicated. Life insurance, guardianship, planning for Long Term Care, wills and trusts: taken piece by piece they can overwhelm even the staunchest of individuals; but our office can help you sort through each of these issues together, and be confident in your future security and the security of your heirs.
In a world with complicated tax laws, and in which we often have very complicated lives, it’s nice to know that your estate planner is working to make your life simpler.
Prepare Your Heirs for Tough Times with an Incentive Trust
April 1, 2009
In these troubled financial times many parents are re-thinking the wisdom of passing on an inheritance with no strings attached. Parents and grandparents still want to help give their heirs a financial boost, but now they want to pass on something else as well—the value of resourcefulness and hard work. How often have you longed for a substantial way to encourage your son or daughter to get a college degree? Or wanted to keep your grandkids away from harmful substances but felt toothless? Well now you can do either (or both) of those things with your estate plan, and something called an incentive trust.
Most parents want to provide for their children, but they also want them to lead satisfying lives as contributing members of society. During your lifetime you can support this goal by giving your children financial gifts gradually, when you feel they need or deserve it. But how do you continue to use that discretion after your death? An incentive trust helps you do just that by defining when financial gifts would be distributed from the trust, and under what circumstances. Most parents choose to give a distribution upon graduation from college, or to help an entrepreneurial child start a new business, but according to this article on APM Marketplace some grantors have even made distributions contingent on who the beneficiary marries or how much weight the beneficiary gains or keeps off!
Okay, perhaps the “Twinkie Trust” is going a bit far, but in many cases an incentive trust can be exactly what a parent or grandparent needs in order to feel good, not just about passing on an inheritance, but about passing on values as well.
Should You Share Your Estate Plan With Your Heirs?
March 27, 2009
If you have a significant estate to leave to your heirs—but you are still alive and well—to whom does that significant estate belong, you or them? This seems a silly question: of course the property belongs to you, but many adult children have come to count on the property their parents will leave them, and—rightly or wrongly—to feel a sense of ownership over it. As potential beneficiaries, do your heirs have the right to be informed ahead of time of your plans for your own estate?
David Cay Johnston, in his article Learning to Share, suggests that although parents have no responsibility to inform their children of their plans, not talking to your kids about your estate plan is a surefire way to foster hurt feelings and interfamily fights after you pass away. Sharing your plans for your wealth may not always be easy, but even the most ardent supporters of the privacy of the would-be decedent will have to agree with the logic of Johnston’s argument.
Our office understands that every family and situation will be different, and some parents will have good reasons for keeping their plans under wraps. But in many circumstances, whether your intention with your estate plan is to ease the way for your heirs or merely to ensure that your wishes are carried out to the letter, open communication with your children or potential heirs is the best way to support the accomplishment of those goals.
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