Category Archives: Wills

What’s Fair?

Dear Liza,
 My husband and I are both in our mid-60s and both retired. We want to put a living trust together.  My husband has two daughters (and two grandchildren) from his previous marriage.  I have no children of my own, but have a sister and nieces and nephews.  My husband feels that his daughters should receive two-thirds of our estate, and my family (nieces and nephews) should divide the remaining one-third.  In your opinion, do you think this is fair?  I feel that I have contributed as much as he has over the years and that it should be a 50/50 split.  I hope you are able to give your opinion.  I can, and I will: I’m on your side, if you feel that you’ve each contributed equally to the property you’ve accumulated together during your marriage.  If you lived in a community property state, that’s how you’d have to divide your assets: 50/50.    But it’s not easy to discuss equity with a spouse, and he may feel that his children ‘deserve’ more somehow than your nieces and siblings.  Still, it’s worth working it out together so that your estate plan reflects your wishes, rather than state default rules, which will kick in if you die without a plan at all.   Maybe if you work with a compassionate and wise attorney (honestly, there are some….) he or she can help you two to articulate your views and come to a fair resolution.

Two kinds of guardians for kids: custodial and financial

Dear Liza , My partner and I have each executed our wills, naming the person to be legally responsible for our minor son (age 12) and indicating that our assets would flow first to one another, then to our son in the event of our deaths.  We assumed that the person we have named guardian for our son would have control over these funds, but recently learned that may not be the case.  The person we have named guardian is not a blood relative, and there are blood relatives living who may not want the guardianship responsibility, but want to control the funds.  Also, we would not want our son to have access to all the funds upon attaining age 18, but would want funds to be able to be spent for college expenses, etc.  We completely trust the guardian named to make the right decisions, but need to know how to best make this happen from a legal perspective.  You, like any parent, have two different problems to solve. The first is, “Who is the best person to raise my son to age 18?”  The second is what’s the best way to manage the money my son will inherit and who is right person to take care of that money?” Nominating a guardian of your son in your Will solves problem number one. To solve problem number two, you need your Will to establish a trust for your son, to hold his money until he’s older, say 25 or 30, and name a Trustee of that trust to manage the money until that time. The alternative is to name a guardian of the estate, this person would manage the money for your son, but only until age 18, when he becomes a legal adult.  You can certainly name the same person to both roles, many people do. But, if the best person to raise your son would spend his college money on a pony, naming someone else is a better choice.

Amending or Restating A Living Trust

Hi Liza,  I have a living trust and I’m the trustee in the trust.  I have a will in the trust.  I wanted to make some changes to the will and I’ve been told by my lawyer that I would have to
make another trust if I want to change the people in my will.  If the will doesn’t have to go to probate why can’t I just make the changes in the will and have my designated
trustee distribute my estate after I’m dead?  One of the people in my will has died, one is in a nursing home and two I haven’t heard from in years.  This doesn’t make
any sense to me.  Can you explain this to me? Well, truthfully, now I’m a tiny bit confused. It sounds like you have a trust, and in that trust you leave assets to various people. (I think that’s what having a “will in the trust” means.) Assuming that you are the Grantor of that trust (the person who established it) and it’s a revocable trust, you can certainly amend the trust to reflect your current intentions. It is common that we lose touch with people over the years, or change our minds about what we want to do with our assets over time. To make a small change to an existing document you would have your lawyer draft a trust amendment for you to sign, changing whatever sections of the existing trust needs revising. If you are making a lot of changes, you’d do what’s called a Restatement of Trust, which is like having an all-new trust with all current terms, but with the same name as the old trust, so you don’t need to retitle assets that are already in it. Maybe that’s what your lawyer meant by a “new trust.”

What Happens if We All Die? The God-Forbid Clause

Dear Liza: I set up a living trust and back up will naming my 3 minor children as beneficiaries.  What if one day, me, my husband and all children die at the same time in an accident? 
Both my parents and in-laws do not live in US.  If none of me, my husband and children survives, I want our estate to pass to our families in Asia.  What is the best way to set this up in my will and living trust? Here’s what you do: put in a section that says that if you, your husband, and all of your children (and their issue–your grandchildren, great grandchildren, and so on…) don’t survive you, that you want your estate split equally between your husband’s surviving parents and siblings and your surviving parents and siblings. I call this the “God Forbid Clause” since it covers an unexpected, but not impossible, scenario.  You can leave your estate to anyone you choose to of course–family, friends, charities.  The important thing is to be specific if you have specific people that you want to benefit. If you don’t really know who to leave your assets to at this point, you  could be more lawyerly and less specific and say “your legal heirs” and this would then be determined under the laws of the state in which you executed your estate planning documents.  If you name specific people you would say where they presently live. And you would let your Trustee and Executor know how to find them by giving them a list of where your parents/siblings live and how to reach them. If your family lives abroad, the tax treatment of their inheritance will depend upon the laws in that jurisdiction.

Leaving Gold Coins, Jewelery, and other tangible personal property

Dear Liza: I collect estate jewelry, and ancient and antique coins.  As I am inventorying my belongings to determine what should be left to whom, I wonder if this all needs to be spelled out in the document, or if I can maintain an inventory spreadsheet with pictures of the items.  Or would I need to go ahead and spell out every single item in the will itself, updating the will every year or two? So, estate jewelry, and coins, and the like are what’s called “tangible personal property” in estate planning. These are items that you own, but that don’t have a title document (like a deed, or a pink slip). Often, a Will will leave all such tangibles to a spouse or to children. Sometimes, a Will will say that the testator (that’s the person making the Will) may leave a separate, signed list, with gifts to specific people of specific objects. That might work best for you. That way, you can update that list periodically, without the expense of having to update your Will. If your collection is really valuable, you might want to transfer it to a living trust, to avoid a probate proceeding upon your death–but that’s pretty unusual and only appropriate if the value of those tangible items are high, such as with a Steinway piano, or vauable jewelery.

Estate Planning for Almost Here Babies

Hi Liza,
I am about to create my Will and Living Trust.  My son has two sons and his wife is pregnant with twin girls.  I would like to know if I can name the twins in my Will/Trust now although they are not due to be born until December? I’ve written Wills that name children soon-to-be born. You could say that you want to benefit all of your son’s children, including the twins girls due in December. Or you could just say all of the children of your son that are alive at your death (which, unless you die before December would certainly include the new twins). Good luck!

Picking Guardians: It’s hard

Dear Liza: My husband and I just can’t seem to get around to writing a Will because we can’t decide who to name as a guardian for our two young children. I don’t like his sister’s husband; he isn’t comfortable with the city where my sister lives. My mother is perfect for right now, but we are worried that she will be too old ten years from now, when she’s 75 and our daughter is 15. We know we should do something, but we don’t know what to do. Any ideas? So, here’s the deal: you are right, you SHOULD do something. And, actually, it sounds like you do know what to do. If right now your mother is the perfect person to be the guardian, get that Will done, and name your mother. You can revisit this in 3 -5 years, and, trust me, you most likely will anyway.  It’s a much better idea to have a Will in place, even if it isn’t going to be perfect forever, than to have nothing written down at all.

Transfer on death accounts and debts

Dear Liza, I am a single male in my sixties. I do not own any real estate property and almost all of my financial accounts are TOD accounts.  I intend to leave my estate to my three adult children.  I have a small stock portfolio and some personal property that I will list in my will. Would  any estate taxes and outstanding debts be paid from the TOD financial accounts I have before the accounts are released to my beneficiaries or would only the stocks and personal property be liquidated to pay the amounts owed? What would happen if there is not enough in my residual estate to cover any outstanding debts? First off, a Transfer on Death (TOD) account is a bank or brokerage account that has a designated beneficiary, who receives the account upon the death of the account owner, without the need for a probate. It’s a great vehicle for passing assets to adult children, especially when, as in your case, you own no real property. (In most states, there’s no way to make real property pass this way, with a transfer on death deed, which is why living trusts are used to avoid probate.) As for debts, if they are unsecured debts (like credit card debts), your heirs are not responsible for paying them. However, the creditors can go after the assets that your heirs inherited from you to pay these debts–it’s just that it usually isn’t worth it to them to do so.  Estate taxes are different–those accounts are part of your taxable estate (you owned them at death) and the heirs would be responsible for paying tax due on these. However, at the moment, you can pass up to $5 million dollars, free of the estate tax, and it doesn’t sound like you (like most people) don’t have that kind of an estate. Here’s a good resource to learn more about this.

Writing a Simple Will

Dear Liza: My best friend of 26 years would like to write up a will. She has a 5 year old daughter, whom does not have a god mother. Both of my best friends parents are dead and the daughters father is not in her life, nor has he been since her birth. My best friend asked my husband and I if we would be her daughters “guardian” if anything should happen to her. We were honored and happily accepted! The problem is, how do we word the will so it is legal?

The good news is that it’s pretty easy to write a valid Will. There are not a lot of hidden ‘gotcha’s’ in doing a Will (unlike a living trust, as you can see from the blog post immediately before this one). Your friend should go to www.nolo.com and use their simple online Will, or purchase WillMaker software, or purchase or go to the library and get a Nolo book like, Nolo’s SImple Will Book, and use their suggested language. Your friend needs to say that she wants you and your husband to serve as the guardians of her minor child and that her child’s biological father is not part of her daughter’s life, and that placement with him would not be in the child’s best interest.

Both of you need to know that she is only nominating you two to serve in her Will – if your friend were to die, a judge would ultimately have to make the guardianship appointment in the best interest of the daughter. A judge will certainly try and honor a parent’s nomination via a
Will, but when there’s a living parent out there, unless they’ve legally abandoned that child (which this father may in fact have done), a judge has to take their parental rights into account as well. If that parent doesn’t want to take custody of the child, the court can certainly also appoint a guardian without severing that parent’s parental rights.

The bottom line is GET THAT WILL DONE. Writing down her wishes for her daughter is the best way your daughter can try and make sure that the right people take care of her daughter if she can’t.

She should sign the Will in front of two witnesses who don’t benefit from the Will in any way. And all of these self-help resources can walk you through the process.

 

Madame Clark-Reclusive Heiress to Huge Fortune Dies at 104

Estate planning in the news. This week, Huguette Marcelle Clark, heiress to her father’s copper fortune, thought to be close to one-half abillion dollars, died at 104, after living for decades in New York hospitals. Reportedly, her accountant and lawyer were the only people in close contact with her. Her passion was for fine French dolls. No news yet on the fate of her fortune. Stay tuned. There will almost certainly be more on this story in the coming weeks. It has it all: a recluse; a fortune; close advisors; an estranged family; a vulnerable old person.