What Exactly Does an Executor Do?

What Exactly Does an Executor Do?

The executor is usually a spouse, close family member or trusted friend. If no such person is available, a qualified compensated person can be appointed under state law, according to a recent article from The Street entitled “Top Duties of an Estate Executor and How to Carry Them Out.”

The executor needs to be trustworthy and organized, since there are many details involved. Depending on the complexity and size of the estate, the executor’s duties could include additional tasks. However, the following are the five main categories:

  • Filing the will with the court
  • Gathering documents
  • Paying debts and taxes and collecting from any debtors
  • Closing out Social Security accounts, insurance policies and retirement accounts; and
  • Maintaining any real estate property, until it is sold or ownership is transferred to an heir.

Once the will is filed with the court and the will is deemed to be valid, the court will issue Letters Testamentary, and the executor will be empowered to go forward with their tasks as directed by the will.

Gathering documents.

The executor needs to gather documents, including:

  • Death certificates
  • Deeds and titles of ownership
  • Trust documents; and
  • Insurance policies.

Combine assets and close accounts.

The executor needs to contact the decedent’s banks, credit card companies, lenders, leasing companies and any accounts holding assets.

The executor also applies to the IRS for an estate tax ID number, also known as an EIN, and opens an estate bank account. This is where any assets are deposited, including proceeds from the sale of any assets.

The Social Security Administration needs to be notified of the death. Depending on the date of death, the last Social Security deposit may be recouped from the decedent’s bank account. If there is an eligible survivor, the executor may help the spouse or dependent apply for benefits.

Collect money owed and pay debts.

The executor may help beneficiaries file for life insurance proceeds.

The executor needs to examine and adjudicate any outstanding debts owed to the decedent and handle any creditor claims. The debts are not the financial responsibility of the executor and should be paid only from funds in the estate account.

With good planning, the executor can ensure an orderly and uncontested flow of assets from the deceased’s estate to heirs. This includes consultation with the testator while they are still living and can discuss their wishes and plan for a smooth transition. This is certainly not the most comfortable discussion. However, it can make the process easier for all concerned, if done with kindness and care in advance.

Reference: The Street (Dec. 5, 2022) “Top Duties of an Estate Executor and How to Carry Them Out”

Should I Keep Beneficiary Designations Up to Date?

Should I Keep Beneficiary Designations Up to Date?

If you don’t know who your beneficiaries are, then it’s time for a beneficiary designation check. Even if you think you remember, every now and then, they should be checked, according to an article “Are your beneficiary designations up to date?” from Community Voice.

Your choices may change with time. When did you open your very first IRA? Do you even remember when you purchased your life insurance policies? If it was back in the 1990s, chances are good the people in your life have changed, as well as your priorities.

When we filled out those forms on paper, back in the day, we were all confident they’d be the same forever, but time and life have a way of changing things. In five, ten or twenty years, big changes may have happened in your life. Your beneficiary designations and your estate plan need to reflect where you are now, not where you were then.

Smart people review these items every year. If you’re still working, your employer may have changed custodians for your retirement plan and your insurance policy. When a new custodian takes over, sometimes beneficiary designations can get lost in the change.

If you don’t have a beneficiary designation on these accounts, or any account where you have the option to name a beneficiary, you may have a bigger problem. The tax-focused part of your estate plan could be undone if you thought your 401(k) would go to your spouse but your spouse predeceased you.

If you don’t want your spouse to inherit your 401(k) or other retirement plan, your spouse will need to waive the inheritance in writing, if you want those assets to go to children or others. By law, spouses are protected when it comes to certain kinds of retirement accounts.

What most people don’t realize is that whatever choice you make on the beneficiary designation overrides anything in their wills. If you named someone to be your beneficiary, whether or not they are in your life, they will still receive the inheritance. Your family can try to fight it out in court, but they most likely will lose.

Another pitfall: naming the financial whiz in the family, then forgetting to review documents. Problems can arise if the whiz-kid moves far away or dies. If you make big changes to how you wish your estate to be distributed and neglect to tell the person named to carry out your updated wishes, they spend a lot of time trying to effectuate an out-of-date plan.

If you name your spouse as a beneficiary, the tax consequences are simpler. However, you still need an estate plan to plan for when the second spouse dies. In other words, you need an estate plan, including a will and trusts, and you also need to review it at least every three to five years.

Reference: Community Voice (September 30, 2022) “Are your beneficiary designations up to date?”

Can Beneficiary Designations Be Challenged?

Can Beneficiary Designations Be Challenged?

The demise of traditional pension plans in the U.S. has been followed by a surge in assets held in participant directed retirement accounts, like IRAs and 401(k)s. The responsibility for investment decisions now belongs to the owners, says a recent article “Did you really intend for your ex to get your IRA?” from Chattanooga Times Free Press. The owner is also responsible for beneficiary distributions after death, which doesn’t always go well.

Retirement accounts are outside of the probate estate. Therefore, assets pass to heirs directly. When people first enroll in a retirement plan or open an IRA account, it’s up to the account owner to stipulate who will receive the asset upon their death, known as the beneficiary. This sounds easy enough. The heirs don’t need to worry about probate and if the ownership transfer is done correctly, they can get some tax advantages from the accounts.

When the owner doesn’t pay attention to beneficiary designations, expensive problems occur.

Failing to name a beneficiary. This is the simplest and most commonly made mistake when enrolling in a company’s retirement plan or rolling assets into an IRA. More than a third of all IRA death claims submitted for processing are lacking a named beneficiary, according to a national retirement plan administrator company. Instead of assets passing directly to heirs, the IRA account flows into the estate and becomes subject to probate and estate taxes.

Once included in the estate, the assets are subject to the will. While IRA assets have up to ten years to be withdrawn, the time limit for distributions in an estate can be as short as five years, and the resulting taxes will be much higher. Even worse, the assets in the IRA are now available to creditors of the estate. Until the estate is fully distributed, it must pay tax returns. Even a modest IRA is going to generate more estate taxes than if it were outside of the estate.

If there is no will, the state decides where the assets go.

Failing to name contingent beneficiaries. If the account owner and primary beneficiary are both dead, there should be at least one contingent beneficiary named on the account. Lacking contingent beneficiaries, the account flows to the estate as if no beneficiary had been named.

Neglecting to update beneficiaries after major life events. Divorce and death happen. Account owners often forget to update beneficiary designations, leading to unintended recipients. In some states, but not all, a divorce decree nullifies the prior designation. However, don’t count on it. If the state does nullify the prior designation, the asset will flow into the probate estate.

Naming a minor as a beneficiary. Most state laws do not permit minors to inherit significant assets without the oversight of a conservator. If a conservator is named by the court, the inheritance will be reduced substantially by court fees and the conservator’s salary. This may not be the worst part, if the asset is big. Here’s what’s worse: at age 18 or 21, a young adult will inherit the entire amount, with no restrictions.

After you’ve updated your beneficiaries, consult with an experienced estate planning attorney to learn how to protect assets, including retirement accounts and pensions.

Reference: Chattanooga Times Free Press (July 9, 2022) “Did you really intend for your ex to get your IRA?”

Senior Second Marriages and Estate Planning

Senior Second Marriages and Estate Planning

For seniors enjoying the romance and vitality of an unexpected late-in-life engagement, congratulations! Love is a wonderful thing, at any age. However, anyone remarrying for the second, or even third time, needs to address their estate planning as well as financial plans for the future. Pre-wedding planning can make a huge difference later in life, advises a recent article from Seniors Matter titled “Your senior parent is getting remarried—just don’t ignore key areas.”

A careful review of your will, powers of attorney, healthcare proxy, living will and any other advance directives should be made. If you have new dependents, your estate planning attorney will help you figure out how your children from a prior marriage can be protected, while caring for new members of the family. Failing to adjust your estate plan could easily result in disinheriting your own offspring.

Deciding how to address finances is best done before you say, “I do.” If one partner has more assets than the other, or if one has more debts, there will be many issues to resolve. Will the partner with more assets want to help resolve the debts, or should the debts be cleared up before the wedding? How will bills be paid? If both partners own homes, where will the newlyweds live?

Do you need a prenuptial agreement? This document is especially important when there are significant assets owned by one or both partners. One function of a prenup is to prevent one partner from challenging the other person’s will and trusts. There are a number of trusts designed to protect loved ones including the new spouse, among them the Qualified Terminable Interest Property Trust, known as a QTIP. This trust provides support for the new spouse. When the spouse dies, the entire trust is transferred to the persons named in the trust, usually children from a first marriage.

Most estate planning attorneys recommend two separate wills for people who wed later in life. This makes distribution of assets easier. Don’t neglect updating Powers of Attorney and any health care documents.

Before walking down the aisle, make an inventory, if you don’t already have one, of all accounts with designated beneficiaries. This should include life insurance policies, pensions, IRAs, 401(k)s, investment accounts and any other property with a beneficiary designation. Make sure that the accounts reflect your current circumstances.

Sooner or later, one or both spouses may need long-term care. Do either of you have long-term care insurance? If one of you needed to go into a nursing home or have skilled care at home, how would you pay for it? An estate planning attorney can help you create a plan for the future, which is necessary regardless of how healthy you may be right now.

Once you are married, Social Security needs to be updated with your new marital status and any name change. If a parent marries after full retirement age and their new spouse’s benefit is higher than their own, they may be able to increase their benefits to 50% of the new spouse’s benefits. If they were receiving divorced spousal benefits, those will end. The same goes for survivor benefits, if the person marries before age 60. If they’re disabled, they may still receive those benefits after age 60.

Setting up an appointment with an estate planning attorney a few months before a senior wedding is a good idea for all concerned. It provides an opportunity to review important legal and financial matters, while giving both spouses time to focus on the “business” side of love.

Reference: Seniors Matter (April 29, 2022) “Your senior parent is getting remarried—just don’t ignore key areas”

Can My Ex Get Some of My Estate?

Can My Ex Get Some of My Estate?

For many people, their will is their final communication to the world.

A will states how their property should be distributed upon their death. CNBC’s recent article entitled “Your ex-spouse could inherit your money. How to avoid this and other estate-planning mistakes” says that depending on how you plan, it may have a few some surprises for those who are close to you.

There are a couple of situations where you could inadvertently leave money to people you no longer intend as heirs, much to the surprise of other heirs.

An ex-spouse could get some of your money when you die, if you do not update your beneficiaries under a retirement plan.

Divorce does not automatically change a beneficiary designation, unless the divorce decree includes a stipulation to change it. IRAs are the same, so it is not uncommon for an IRA owner to die without having changed the beneficiary designation after a divorce. It’s usually just a simple oversight.

However, most state laws provide that once a married couple is divorced, ex-spouses lose all property rights.

However, pensions are governed by federal law, formally known as ERISA or the Employee Retirement Income Security Act of 1974. As a result, state rules do not apply.

Pensions are not the only accounts that people tend to forget to update. Bank account beneficiary designations are often hard to find, and circumstances may change from when you first set them up.

While it may be tempting to disinherit someone to whom you are no longer close, it can be a bad idea. That is because it can invite all kinds of issues, like a will challenge.

There is always the chance you may reconcile, even on your death bed, at which point it will be too late to update your will and estate plan. Therefore, leave something less to them and do not say anything bad.

To ensure your wishes are carried out the way you want, work with an experienced estate planning attorney.

Reference: CNBC (Jan. 9, 2022) “Your ex-spouse could inherit your money. How to avoid this and other estate-planning mistakes”

Can I Avoid Probate?

Can I Avoid Probate?

If you have life insurance, lifetime survivor benefits, a home or other investments, who gets them and when depends on what you have done or should do: have an estate plan. This is how you legally protect your family and friends to be sure that they receive what you want after you die, says the article “How (and why) to avoid probate: A slap at your family!” from Federal News Network.

A common goal is to simplify your estate plan to make administering it as easy as possible for your loved ones. This usually involves structuring an estate plan to avoid probate, which can be time-consuming and, depending on where you live, add a considerable cost to settle your estate.

There are a number of ways to accomplish this through an estate plan, including jointly owned property, beneficiary designations and the use of trusts.

Many individuals hold property in joint names, also known as “tenant by the entirety” with a spouse. When one spouse dies, the other becomes the owner without probate. It should be noted that this supersedes the terms of a will or a trust.

Another type of joint ownership is “tenancy in common,” However, property held as tenants in common does not avoid probate. The distribution of property titled this way is governed by the will. If there is no will, the state’s estate laws will govern who receives the property on death of one of the owners.

Beware: property owned jointly is subject to any litigation or creditor issues of a joint owner. It can be risky.

Beneficiary designations are a seamless way to transfer property. This can take the form of a POD (payable on death) or TOD (transfer on death) account. Pensions, insurance policies and certain types of retirement accounts provide owners with the opportunity to name a beneficiary. Upon the death of the owner, the assets pass directly to the beneficiary. The asset is not subject to probate and the designations supersede the terms of a will or trust.

Review beneficiary designations every time you review your estate plan. If you opened a 401(k) account at your first job and have not reviewed the beneficiary designation in many years, you may be unwittingly giving someone you have not seen for years a nice surprise upon your passing.

If you own assets other than joint property or assets without beneficiary designation, an estate planning attorney can structure your estate plan to include trusts. A trust is a legal entity owning any property transferred into it. A trust can avoid probate and provide a great deal of control by the grantor as to what they want to happen to the property.

Reference: Federal News Network (March 30, 2022) “How (and why) to avoid probate: A slap at your family!”

No Will? What Happens Now Can Be a Horror Show

No Will? What Happens Now Can Be a Horror Show

Families who have lived through settling an estate without an estate plan will agree that the title of this article, “Preventing the Horrors of Dying Without a Will,” from Next Avenue, is no exaggeration. When the family is grieving is no time to be fighting, yet the absence of a will and an estate plan leads to this exact situation.

Why do people procrastinate having their wills and estate plans done?

Limited understanding about wealth transfers. People may think they do not have enough assets to require an estate plan. Their home, retirement funds or savings account may not be in the mega-millions, but this is actually more of a reason to have an estate plan.

Fear of mortality. We do not like to talk or think about death. However, talking about what will happen when you die or what may happen if you become incapacitated is very important. Planning so your children or other trusted family member or friends will be able to make decisions on your behalf or care for you alleviates what could otherwise turn into an expensive and emotionally disastrous time.

Perceived lack of benefits. Working with an experienced estate planning attorney who will put your interests first means you will have one less thing to worry about while you are living and towards the end of your life.

Estate planning documents contain the wishes and directives for your legacy and finances after you pass. They answer questions like:

  • Who should look after your minor children, if both primary caregivers die before the children reach adulthood?
  • If you become incapacitated, who should handle your financial affairs, who should be in charge of your healthcare and what kind of end-of-life care do you want?
  • What do you want to happen to your assets after you die? Your estate refers to your financial accounts, personal possessions, retirement funds, pensions and real estate.

Your estate plan includes a will, trusts (if appropriate), a durable financial power of attorney, a health care power of attorney or advanced directive and a living will. The will distributes your property and also names an executor, who is in charge of making sure the directions in the will are carried out.

If you become incapacitated by illness or injury, the POA gives agency to someone else to carry out your wishes while you are living. The living will provides an opportunity to express your wishes regarding end-of-life care.

There are many different reasons to put off having an estate plan, but they all end up in the same place: the potential to create family disruption, unnecessary expenses and stress. Show your family how much you love them, by overcoming your fears and preparing for the next generation. Meet with an estate planning attorney and prepare for the future.

Reference: Next Avenue (March 21, 2022) “Preventing the Horrors of Dying Without a Will”

Is It Important for Physicians to Have an Estate Plan?

Is It Important for Physicians to Have an Estate Plan?

When the newly minted physician completes their residency and begins practicing, the last thing on their minds is getting their estate plan in order. Instead, they should make it a priority, according to a recent article titled “Physicians, get your estate in order or the court will do it instead” from Medical Economics. Physicians accumulate wealth to a greater degree and faster than most people. They are also in a profession with a higher likelihood of being sued than most. They need an estate plan.

Estate planning does more than distribute assets after death. It is also asset protection. An estate planning attorney helps physicians, dentists and other medical professionals protect their assets and their legacies.

Basic estate planning documents include a last will and testament, financial power of attorney and a medical power of attorney. However, the physician’s estate is complex and requires an attorney with experience in asset protection and business succession.

During the process of creating an estate plan, the physician will need to determine who they would want to serve as a guardian, if there are minor children and what they would want to occur if all of their beneficiaries were to predecease them. A list should be drafted with all assets, debts, including medical school loans, life insurance documents and retirement or pension accounts, including the names of beneficiaries.

The will is the center of the estate plan. It will require naming a person, typically a spouse, to be the executor: the person in charge of administering the estate. If the physician is not married, a trusted relative or friend can be named. There should also be a second person named, in case the first is unable to serve.

If the physician owns their practice, the estate plan should be augmented with a business succession plan. The will’s executor may need to oversee decisions regarding the sale of the practice. A trusted friend with no business acumen or knowledge of how a medical practice works may not be the best executor. These are all important considerations. Special considerations apply when the “business” is a professional practice, so do not make any moves without expert estate planning assistance.

The will only controls assets in the individual’s name. Assets owned jointly, or those with a beneficiary designation, are not governed by the will.

Without a will, the entire estate may need to go through probate, which is a lengthy and expensive process. For one family, their father’s lack of a will and secrecy took 18 months and cost $30,000 in legal fees for the estate to be settled.

Trusts are an option for protecting assets. By placing assets in trust, they are protected from creditors and provide control in complex family situations. The goal is to create a trust and fund it before any legal actions occur. Transferring assets after a lawsuit has begun or after a creditor has attached an asset could lead to a physician being charged with fraudulent conveyance—where assets are transferred for the sole purpose of avoiding paying creditors.

Estate planning is never a one-and-done event. If a doctor starts a family limited partnership to transfer wealth to the next generation but neglects to properly maintain the partnership, some or all of the funds may be vulnerable.

An estate plan needs to be reviewed every few years and certainly every time a major life event occurs, including marriage, divorce, birth, death, relocation, or a significant change in wealth.

When consulting with an experienced estate planning attorney, a doctor should ask about the potential benefits of revocable living trust planning to avoid probate, maintain privacy and streamline the administration of the estate upon incapacity or at death.

Reference: Medical Economics (Feb. 22, 2022) “Physicians, get your estate in order or the court will do it instead”

Can You Keep Your Children from Inheriting Your Money?

Can You Keep Your Children from Inheriting Your Money?

What if you want to exclude your children and give your assets to a charity or a college after you pass away? You also don’t want your children to be able to contest your will.

Nj.com’s article entitled “My kids are brats. I don’t want them to inherit. What’s next?” explains that a person with this intention has a number of options for their estate.

First, you should understand that, unless there is a pre-existing contractual agreement or other obligation to do so, a person typically isn’t required to leave anyone other than their spouse anything in their estate.

A properly drafted will by an experienced estate planning attorney allows a person to name the beneficiaries of their estate. This can include charities. It also includes the amount or specific items and in what way each beneficiary will inherit.

You really can’t do much to prevent a child from challenging a will. However, your estate planning attorney can take steps to mitigate the risk that a challenge may be successful. This can include ensuring the testator — the person who establishes a will — has the requisite capacity to sign a will (“being of sound mind”) and that they’re signing it free of any undue influence or duress.

An experienced estate planning attorney will usually meet with a client several times to discuss the client’s assets and intention of disinheriting a child. The attorney will take notes that may be offered as evidence in the event of a will contest and even conduct the meeting in the presence of another attorney or staff member of the firm who could act as another witness.

A will should include specific language that it is the testator’s intent to disinherit a person, and that this individual should be treated as predeceasing the testator for purposes of the will. This helps ensure that the disinherited individual doesn’t somehow benefit.

Note that not all assets pass through the estate and pursuant to the terms of a will. Assets like retirement accounts, life insurance, annuities, and other financial accounts pass by beneficiary designation.

Real estate usually passes by operation of law, such by joint tenancy with right of survivorship.

Reference: nj.com (Dec. 22, 2021) “My kids are brats. I don’t want them to inherit. What’s next?”