There are many misunderstandings about Estate Plans and who should have them. Many people think that an estate means a large tract of land and great wealth and extensive personal property that is very valuable, such as vintage antiques and collectibles. Although this can be true, ‘estate’ does not mean the same to everyone. In a recent version of Webster’s Dictionary, there are three definitions for the word estate:
1) a condition or stage of life;
2) property; possessions; and
3) a large individually owned piece of land containing a residence.
Although definition number 3 hints at this description, the other two have nothing to do with “a large tract of land”. Definition 3 names ‘a residence’, but it does not indicate the type. According to definition 3, an estate could actually be a one-room shack sitting on very little land. According to these definitions, an estate can mean simply the property and / or possessions of a person.
When someone dies, the property and possessions are rightfully passed over to the next of kin – or disposed of according to the directions left by the deceased. If no directions have been defined, the state laws determine this division of the estate, regardless of its size. An ESTATE PLAN is the desire and intent of how all assets and property will be transferred from one person (or couple) to the next person (or generation.)
A will can be one component of an estate plan, but it alone cannot effectively complete the estate plan. A will names whom you want to handle your final affairs or to receive assets that are titled in your name. However, most people don’t know that a will only controls the assets that are titled in your name. It does not control assets that are titled in joint ownership and go to your spouse or another joint owner when you die. It does not control assets with beneficiary designations for retirement accounts, such as IRAs, Roth IRAs, Annuities, 401(k), 403(b), Profit Sharing plans, or life insurance policies.
A will does not go into effect until one is deceased. A properly executed Power of Attorney is needed for the time between when one can no longer handle one’s own affairs and death. Oftentimes a will is sufficient to handle all the affairs of one’s estate. However, it is important that each will be specifically designed and properly executed for individuals with specific situations and circumstance in mind.
Another component or tool for estate planning is the use of titling assets in joint ownership. Most married people title assets together as “joint tenants with right of survivorship” (commonly abbreviated JTWROS). This leaves the entire balance of all assets to the surviving joint owner. It is a simple and effective tool that easily handles homes, automobiles, and checking accounts. It is important to note that this designation supersedes the will.
There are several other possible techniques and practices to incorporate into an estate plan. Some utilize the practice of “Gifting” assets to another party while one is still alive. There are important tax considerations surrounding gifting that must be discussed with a competent tax advisor. A Revocable Living Trust is another alternative or addition to a will in an estate plan that is more comprehensive. This trust is its own entity like a person or a corporation. It is called a Revocable Living Trust because it is established while one is living and can be changed or “revoked” by the donor at any time. Since the assets are then owned by the trust, probate is avoided because the assets never change hands again unless final instructions of the trust are to distribute them to a named beneficiary.
Another decision in estate planning is to do nothing. If one dies with no valid will in place, one is deemed to have died “intestate.” Although beneficiary designations will be honored, the laws of the state in which one owns property or assets will control all probate assets. This lack of control may cause assets to be distributed in an undesirable manner. It is important to have financial, tax and legal professionals work together to help you create an estate plan. A complete Estate Plan includes all of the items discussed above, working together to develop an effective course of action.
What Did James Brown and Anna Nicole Smith Have in Common?
Perhaps if both of them had followed the advice recommended in the following article, their estates could have been settled more quickly and easily. Obviously, they did NOT "Get their houses in order" soon enough. Don't cause your loved ones the agony of going through unnecessary struggles and heartbreak when faced with settling your own estate. All of us - and our children - must face this inevitable time of life some day.
In Estate Planning – An Ounce of Prevention is Worth a Pound of Cure
Shakespeare’s words speak a profound truth when it comes to Estate Planning and ultimately, Estate Settlements. Accordingly, preventing problems (‘an ounce of prevention’) is worth much more than trying to solve them (‘is worth a pound of cure’). When I tell people the name of my book, THE SETTLEMENT GAME: How to Settle an Estate Peacefully and Fairly, the immediate response I often receive is an expressive ‘roll of the eyes’ and then a comment like “Already been through it – too late for me – wish we’d had that a couple of years ago. I have two sisters who still aren’t speaking to each other.”
How Well Do You Know Your Siblings? Better yet, How Well Do You Know Yourself?
There are only five senses, but countless ways of seeing things. “Personality Differences” often cause conflict in the division process of an estate settlement. Without understanding these differences, the process of keeping the peace and avoiding conflict will be much more difficult. From the book Positive Personality Profiles by Dr. Robert Rohm, there are four basic personality styles. Each style sees the world differently. Each style has both great strengths and several weaknesses. No two people are exactly alike. Therefore, every personality is really a blend of all four styles. Using the model of human behavior, there are two questions to ask about yourself or anyone you want to better understand:
