Does the whole idea of estate planning seem a little daunting to you? Many people think it’s something that only rich people need to do. The average person doesn’t like to think about their last will and testament or the need for a trust. Even though these are topics none of us really want to deal with, everyone should know the most basic information. They should also know how to recognize myths when they run across them. Here are some questions we’re often asked due to common misconceptions.
If someone dies without a will, does the state get everything?
There are lots of reasons to write a will, but worrying about the state snatching your family’s inheritance is not one of them. If you die without a valid will (the legal term for this is dying intestate), then state law kicks in. Every state has its own rules for who inherits the estate of a person who died intestate. Generally, your spouse and children are first in line. The rules vary from state to state; however, in some states, a surviving spouse and minor children share the deceased parent’s assets, which is a good reason to write a will— you don’t want your eight-year-old to inherit a quarter of your bank accounts, do you?
Do assets ever go to the state?
Yes, but only when no relatives can be found. As long as your personal representative (the person in charge of wrapping up your estate) can turn up your uncle’s long-lost grandchild, the state won’t get your money. The term for this is called escheat, and there’s a reason you’ve probably never heard that word—escheat is very rare. However, even though the state won’t get your money, you still want to decide who does—so don’t leave that decision up to state law. Write a will—it’s easy, and it doesn’t cost much.
Does it really take years to probate an estate?
Most estates don’t take years to resolve. Usually, the only delay is the period, mandated by state law, that gives creditors time to file claims. The length of the creditors’ claim window varies from state to state. After that waiting period is over, the estate can be closed as soon as the personal representative has gathered all the assets and paid all debts and taxes. In states with estate or inheritance tax, the estate may need to get a tax clearance letter from the state department of revenue. As a practical matter, it usually takes a few months to get everything in order, but most estates are closed within a year.
Three reasons why probate cases may drag on for years:
Family fights: If a family member challenges the will, or if siblings can’t agree about how to divide a parent’s assets, then a court may have to intervene to settle matters. That means acrimony, delay and expense.
A very large estate: If the estate is so big that it owes federal or state estate tax, things are more complicated. There’s no way the estate will be settled before the estate tax return is due, nine months after the death. Plus, many estates receive a six-month extension for filing because the return is so complex, but, more than 99.5% of estates do not owe federal estate tax, and fewer than 20 states impose their own estate tax.
Ongoing income: There are the estates that we hear of in the news—those of celebrities such as Michael Jackson—which continue to receive income (millions of dollars’ worth, in some cases) for decades after the death.
Will the cost of probate eat up all of the estate’s assets?
There are a lot of scary stories about how much probate costs. If you believe the worst of them, you might think that your family won’t get a thing once the lawyer fees and court costs are paid. Fortunately, that’s just not true. Many estates don’t even require probate proceedings. Generally, only assets owned in the deceased person’s name alone must go through probate. Also, if the value of those probate assets is small enough, the family can take advantage of probate shortcuts, which are less expensive than regular probate. But even if the estate requires formal probate, the cost is likely to be less than 5% of the value of the estate. In most states, it costs several hundred dollars to file a probate case, a few hundred more to publish required legal notices, and a couple of thousand dollars to hire an attorney to handle everything. Throw in a few hundred more for miscellaneous costs like appraisals and certified copies of court documents. That’s it.
Do I have to leave any assets to my spouse or can I cut my spouse out of my will?
Some couples decide not to leave each other a significant amount of assets, especially if each one owns assets independently. They may agree that each will leave most assets to their children from a previous marriage, or to a charity. Many couples in second marriages, especially if they got married later in life, are primarily concerned with providing for children from a previous relationship. This can work just fine, as long as the survivor is happy with that arrangement.
However, if circumstances have changed, or the survivor simply changes his/her mind, trouble can arise. That’s because state law may give surviving spouses the right to refuse to take the assets left in the deceased spouse’s will, and instead choose to take what most states call the elective share of the estate. This is often called taking against the will. State law may give the survivor one-third of the estate, or a year’s support, or the right to live in the family home—it varies widely from state to state. In some states, the longer the couple was married, the bigger the share the survivor can claim. If you and your spouse don’t want to leave property to each other in your wills, go to a lawyer and discuss your plans. You’ll want to sign waivers giving up your right to take against the will.
As the oldest child, am I automatically entitled to be the executor of my parent’s estate?
Just because you were always the responsible one—or just bigger and able to push your little siblings around—that doesn’t carry any weight when it comes to serving as the executor (personal representative) of a deceased parent’s estate. If the deceased person named an executor in his or her will, the court will appoint that person unless there’s a very good reason not to. Reasons include a felony conviction or a disability that makes it impossible to do the job. If there isn’t a will, or the person named as executor in the will cannot or does not want to serve, then the court will appoint someone. But sibling order isn’t a factor courts take into account. Instead, the court looks to state law, which sets out a priority list for who the court should appoint. In most states, the surviving spouse is first in line. Then come adult children. If more than one child wants to be executor, they can agree to act as co-executors, but that’s often a situation that can lead to family friction. It’s often better if siblings agree that one of them will serve as personal representative, and will keep the others well informed about the probate court proceeding. If you think you should be the executor, talk to your parents about naming you in their wills. If you’re a parent making your will, name the child you think is most responsible and conscientious; don’t name all your kids unless you truly think it’s best for all of them to serve as co-executors.
Why should I make a will?
Many people spend more time planning for their vacations than planning for their estates. This is probably because the vacation will happen sooner and because it’s much more fun to plan. However, estate planning is much more important, but requires more time and effort. Without a comprehensive estate plan, a significant part of the work you’ve done throughout your life, both at your job and with your investments, can be lost or given to unintended beneficiaries.
Don’t let the legal terminology fool you. Estate planning is simply the process of getting your affairs in order so that you make things easier for your surviving family members when the time comes. It doesn’t have to be difficult, expensive, or depressing. All you need to do is take a few simple steps: take a look at what you own, make a will and a few other documents, and review the beneficiary designations on your retirement accounts. Estate planning is something you do for your family. Get it done, and you’ll feel better knowing that you’ve taken care of them.
The attorneys in the Trust & Estates Practice Group at Yedid & Zeitoune have a combined 15 years of legal experience