Lots of Americans haven't made even a simple will, to say nothing of a more comprehensive plan to avoid probate or save on estate taxes. And even those who have thought about what should happen to their property when they eventually shuffle off to Nirvana haven't updated their plan in many years. We're not going to nag, but we are going to chime in with a few suggestions as to what your estate plan should look like. Oh yes, in case you're new to this area, estate planning is simply a fancy term for the process of arranging for what will happen to your property (estate) if a particularly large and lethal brick falls on your head.
Depending on your age, health, wealth, and innate level of caution, you may not need to do much at all in the way of estate planning. And even if you do decide you need a will or a trust, you probably won't need a lawyer. Especially if you aren't dripping with Picassos or fat investment accounts, it is easy and safe to prepare most basic estate planning documents yourself. Just learn what you're doing by using good self-help materials.
We've sorted our tips into broad categories of family situation and age. As they say, check all that apply. But keep in mind that age is an imprecise proxy for life expectancy, which is affected by all sorts of other factors -- heavy smoking while participating in extreme sports and driving a motorcycle, for example. It's up to you to add or subtract a few years, based on your health and lifestyle.
You're 25 and Single
What are you doing reading about estate planning? You're supposed to be surfing the Net or dancing until dawn. But you may as well keep reading; this won't take long.
At your age, there's not much point in putting a lot of energy into estate planning. Unless your lifestyle is unusually risky or you have a serious illness, you're very unlikely to die for a long, long time.
If you're an uncommonly rich 25-year-old, though, write a will. (Bricks can fall on anyone.) That way you can leave your possessions to any recipient you choose -- your boyfriend, your favorite cause, the nephew who thinks you're totally cool. If you don't write a will, whatever wealth you leave behind will probably go to your parents. Think about it.
You're Paired Up but Not Married
If you have a life partner but no marriage certificate, a will is almost a must-have document. Without a will, state law will dictate where your property goes after your death, and no state gives anything to an unmarried partner. Instead, your closest relatives will inherit everything.
Other options to make sure that your partner isn't left out in the cold after your death is to own big-ticket items, such as houses and cars, together in "joint tenancy" with right of survivorship. Then, when one of you dies, the survivor will automatically own 100% of the property.
You Have Young Children
Having children complicates life -- but then, you already know that. Estate planning is no exception. Here's what to think about.
First, write a will. Nothing fancy, just a document that leaves your property to whomever you choose and names a guardian for your children. The guardian will take over if both you and the other parent are unavailable. That's an unlikely situation, but one that's worth addressing just in case. If you fail to name a guardian, a court will appoint someone -- possibly one of your parents.
The other big reason to write a will is that if you don't, some of your property may go not to your spouse, but directly to your children. When given a choice, most people prefer that the money go to their spouse (trustworthy ones, anyway), who will use it for the kids. The problem with the children inheriting directly is that the surviving parent may need to get court permission to handle the money -- a waste of time and money in most families.
Second, think about buying life insurance, so the other parent will be able to replace your earnings if that damn brick chooses you. Term life insurance is relatively cheap, especially if you're young and don't smoke. You can shop for the best bargain by consulting free services that compare the rates of lots of companies. There are many such services available online; find them by searching for "term life insurance."
You're Middle-Aged and Know the Names of at Least Three Mutual Funds
If you've made it to a comfortable time in life -- you've accumulated some material wealth and enough wisdom to let you know that other things matter, too -- you will probably want to take some time to reflect on what you will eventually leave behind.
But given that you may well live another 30 or 40 years, there is no need to obsess about it. Chances are your conclusions will be different in 10 or 20 years, and your estate plan will change accordingly.
To save your family the cost (and hassles) of probate court proceedings after your death, think about creating a revocable living trust. It's hardly more trouble than writing a will and lets everything go directly to your heirs after your death, without taking a circuitous and expensive detour through probate court.
While you're alive, the trust has no effect, and you can revoke it or change its terms at any time. But after your death, the person you chose to be your "successor trustee" takes control of trust property and transfers it according to the directions you left in the trust document. It's quick and simple.
There are other, even easier ways to avoid probate: You can turn any bank account into a "payable-on-death" account simply by signing a form (the bank will supply it) and naming someone to inherit whatever funds are in the account at your death. You can do the same thing, in about 40 states, with securities. (Ask your broker if your state has adopted a law called the Uniform Transfer-on-Death Securities Registration Act.)
If you have enough property to worry about federal estate taxes, think about a tax avoidance trust as well. Currently, estates worth more than $675,000 are taxed; that amount will increase to $1 million by 2006. Most estates are never subject to tax, but if estate tax does take a bite, it can be a big one. Tax rates now start at 37% and rise to 55% for estates worth more than $3 million.
One way to reduce these taxes is to give away property before your death. After all, if you don't own it, it can't be taxed. But gifts larger than $10,000 per year per recipient are subject to gift tax, which applies at the same rates as does estate tax. Still, an annual gift-giving plan can reduce the size of even a big estate, especially if you have a good-sized covey of kids and grandkids. Gifts to your spouse (as long as he or she is a U.S. citizen), gifts directly to pay for tuition or medical bills, or gifts to a tax-exempt organization are exempt from gift tax.
Another way to cut taxes is to create certain kinds of trusts. The most common, the AB trust, is one that couples use. Each spouse leaves property to their children -- with the crucial condition that the surviving spouse has the right to use the income that property produces for as long as he or she lives. In some circumstances, the surviving spouse may even be able to spend principal. By 2006, an AB trust will shield up to $2 million from estate tax.
Charitable trusts, which involve making a gift to a charity and getting some payments back, can also save on both estate and income tax. There are many other varieties of trusts; learn about them on your own, and then have an experienced estate planning lawyer draw up the documents you want.
You're Elderly or Ill
Now is the time to take concrete steps to establish an estate plan pronto. It's also a good idea to think about what could happen before your death, if you become seriously ill and unable to handle your own affairs.
First, the basics: Consider a probate-avoidance living trust and, if you're concerned about estate taxes, a tax-saving trust. (These devices are discussed just above.) Write a will, or update an old one.
Then, although no one wants to do it, take a minute to think about the possibility that at some time, you might become incapacitated and unable to handle day-to-day financial matters or make health care decisions. If you don't do anything to prepare for this unpleasant possibility, a judge may have to appoint someone to make these decisions for you. No one wants a court's intervention in such personal matters, but someone must have legal authority to act on your behalf.
You can choose that person yourself, and give him or her legal authority to act for you, by creating documents called durable powers of attorney. You'll need one for your financial matters and one for health care. (Some states allow the two to be combined, but it's usually not a good idea. They're used in completely different situations.) You choose someone you trust to act for you (called your attorney-in-fact) and spell out his or her authority. If you wish, you can even state that the document won't have any effect unless and until you become incapacitated. Once signed and notarized, it's legally valid, and your mind can be at ease.
Copyright © 2000 Nolo.com Inc.