|If you listen carefully you may hear a song bird trilling or a crow cawing. So much to delight in. BUT then there may be spring cleaning. As estate planners, the lawyers at the Law Offices of Julia P. Wald recommend a little spring cleaning and reviewing.
For many, many people their estate planning documents have been gathering dust. Getting rid of dust is just what you do with spring cleaning so let's think about cleaning the dust off your estate planning documents.
People ask us, when do I have to re-do my estate planning documents? They may have been lying fallow for many years but there is little impetus to even look at them.
Before you can decide whether you need to update your estate planning documents, you need to read them (or a summary of them) to remind yourself what they say. So get out a dust cloth, remove the dust from the outside cover and read. It will be slow going. Before you put your feet up to read, put some flowers in a vase near where you sit.
Look at them from time to time to stay happy. It is spring time, hooray!
Now, skip to the most important parts of your Will and Trust Agreement, the parts that say:
- Who your family members are.
- Who is to receive the family treasures.
- Who receives an interest in trust and when does that interest come out of trust.
- If you have a trust, look at the schedule at the end of the Trust Agreement which may list your assets.
- Look at the parts that deal with estate tax issues and generation skipping tax issues. (Notice that I saved the hardest for last.)
| Regarding Family Members|
Did you sign your Will when you were married for the first time? Did you sign your Will when your kids were little and now they have children of their own? Did you mention your first child by name, but have not mentioned children numbers 2 and 3? Did you leave a trust for your mother's benefit, but your mother has been dead for 5 years? Do you have your first dog whom you dearly love but, of course, nothing in your Trust Agreement makes provision for her? You seriously need to update your documents!
A remarriage invalidates a Will that does not mention the new spouse. The Will from your first marriage will not be enforceable.
In most of the other cases, the documents probably take care of the eventuality that I have mentioned, e. g., your Will/trust agreement may say (in convoluted legalese): if my mother survives me, then set up a trust for her and if she doesn't, don't.
So, legally your document may be fine, but think about the people's feelings: won't your third child or your grandchildren be hurt that they aren't mentioned by name. Probably.
In many families, estate documents of deceased loved ones cause consternation and hurt.
Make sure yours inspire love and gratitude.
If you old estate planning documents name specific treasures to go to specific people, review the list of treasures. Review the list of people.
Tommy who seemed so interested in music may live in a tiny house with his family of 5 and no longer be interested in having a grand piano while Wendy longs for one for her talented son.
There may be new treasures that should be allotted to specific people to enjoy.
The most typical example of a trust that is no longer needed is the trust for you children which lasts until the youngest one is 25. If everyone is well past 25, you may want to take that sub-trust out of your Living Trust and instead craft and plan a trust for the grandchildren.
You may have a child or grandchild who is on public benefits for one reason or another or is not able to be self supporting because of an addiction. It does not assist some such people to get an inheritance when this stops their benefits or furthers their addictive behavior. In these cases your estate planning should include careful consideration on how to set up a trust for such a child or grandchild. For the grandchild on social security income (SSI) or with a disability such that you are pretty certain she will be on SSI a Special Needs Trust could be enormously helpful. If your grandchild wasn't even born when you signed your living trust, you definitely need an update.
|Schedule of Assets |
In most cases people sign a living trust to avoid probate. The concept is that you own your assets inside your trust. That is, title to the assets is in the name of the Trustee. What happens to your assets at your death is spelled out in the Trust Agreement and the trustee carries out those instructions.
THE PROBLEM is that at the day you die the assets actually have to be in the name of your Trustee. Suppose that on the day you and your spouse signed your Trust Agreement, our house was deeded to the Trustee (you and your spouse as trustee). We say it is "in the trust." If it is in the trust it doesn't have to be probated. Later if you refinanced, the lender may have asked you to take the house outside of the trust so that lender's lien, the deed of trust, could go onto the house while you owned it individually and not as trustees. So the title company prepared a deed which transferred the house from you and your spouse as trustees to you and your spouse as individuals.
WHAT HAPPENS NEXT IS CRUCIAL. If what happens next is you die, then you have died without having returned the house to the trust. The house may have to be probated put it back into the trust. But wait!
It is springtime so I can tell you that there can be a happy ending. If you listed the house on the Schedule of assets attached to the Trust Agreement (or did some other act to show you intended the house to be in the trust) your lawyer can do a simple court procedure to get the house transferred to the trustee.
Update your list of assets attached to the Trust agreement and give your lawyer a fighting chance to save you the cost of probate.
| Change in Estate Tax Law|
Of course there has been a change in the estate tax law since you signed your estate planning documents, unless you did your estate planning documents in 2011. (If that is so, you are spared this kind of spring cleaning, maybe you can use your extra time to look at the lilies).
The February newsletter discussed the change in the law and I suggest you read it.
There is no saying in a newsletter whether the change in the law will effect your estate plan in a way that makes it advisable to change your documents. For many people the fact that there is no estate tax for estates worth less than $5,000,000 means that the complications of their plan which were incorporated to avoid taxes may be unnecessary. But before that makes YOU
head outdoors to smell the hibiscus, remember the law as it now stands says that for deaths in 2014 and following only estates worth less than $1,000,000 escape estate taxes.
It may be too early to get rid of all that good estate tax planning after all.
Happy Spring time and Summer vacation. Thinking of summer vacation reminds me that people often want their documents updated before taking a trip.
Call The Law Offices of Julia P Wald if you need help with your spring cleaning.
We can help you understand what your Will and Living Trust says and update them if needed.
We have lots of good ideas for individual needs.
The Law Offices of Julia Wald
|1108 Fifth Avenue|
San Rafael, California 94901