People work a lifetime to save and accumulate wealth, and usually intend to pass it on to their children (or other heirs) at death. Unfortunately, too many people neglect how their wealth will ultimately be transferred, and their lack of planning can wreak havoc with their good intentions. Reminiscent of the David Letterman show, here are the “top 10” estate planning mistakes that we commonly see, in reverse order:
10. Leaving assets directly to a minor child. Since minor beneficiaries do not have the “legal capacity” to own or inherit property, any assets left directly to a minor (including via an innocuous beneficiary form) will generally require that the court either hold the assets until the minor reaches age 18, or appoint a court-supervised guardian to do so. Neither is a good option. Instead, create a trust for minor children in your Will, and make sure assets are directed to that trust at your death.
9. Failure to plan for the death of a beneficiary. If a child dies before their parent, what happens to that child’s share of the assets? Do those assets pass to the children of the deceased child (the grandchildren), or all to the surviving children? Grandchildren could be inadvertently disinherited if the second option is in place. Are spouses included? Family dynamics can be irreparably harmed if there are misplaced expectations here. Be sure to cover all possible contingencies in your estate plan, including even what happens if the entire family suffers a common disaster, leaving no surviving descendants.
8. Failure to plan for common ownership of family vacation homes. Many families have fond memories of the time spent together at family vacation homes, ranches or other residences. They idealize passing the family home on to their children, and those good times continuing for generations. Unfortunately, many times families fail to consider what will happen if one branch of the family cannot afford its share of the expenses, or if family members cannot agree on how to share usage of the home. Happy memories can sour very quickly. Instead, careful consideration should be given to sharing the ownership and expenses of the family home, and provision made for children who may elect to “opt out” of ownership. One good option for this type of planning is a family limited liability company, which provides a legal structure to own the home and specify the governing rules. It can even be funded to cover expected expenses for years to come.
7. Failure to protect a child’s inheritance. Assets that pass outright to an adult child are not generally insulated from creditors/lawsuits, divorce, or potential estate tax at the child’s death. Under Texas law, using a trust to receive the child’s inheritance can provide these protections, even when the child acts as his/her own trustee.
6. Lack of liquidity to pay estate taxes. Despite the currently high estate tax exemption, payment of the estate tax remains a daunting issue for many. Due nine months after death (unless assets are left to a spouse or charity), the estate tax is currently 40% of the value of a deceased person’s assets in excess of $11.58 million. Among other strategies, life insurance can provide the needed cash to pay the tax for families whose wealth is concentrated in real estate or family business holdings and can prevent a “fire sale” of cherished family assets after the death of a loved one.
5. Poor planning for IRAs. Penalty taxes arise if retirement plan/IRA distributions are too small, too early or too late. Everyone should revisit their strategy for distributions from these plans/ IRAs and should review their beneficiary designations as well. It is especially important to understand how quickly your beneficiaries will be required to withdraw your IRA funds after your death, since the “stretch IRA” is no longer generally available under the new Secure Act.
4. Failure to use a spousal trust. Under the current estate tax law, there may not be a strong tax incentive to use a trust for your spouse unless your estate exceeds the estate tax exemption of $11.58 million. As a result, many individuals are now opting to leave assets directly to their spouse at death. While this simple approach is attractive, it does not protect the family from predators or creditors: predators who might influence (manipulate) the surviving spouse to give or bequeath assets to the predator, be it a new spouse or overreaching caregiver; or creditors resulting from a lawsuit or other legal dispute. A trust set up in your Will to hold the assets left to your surviving spouse can protect against these possibilities, while still providing for your spouse.
3. Failure to plan for incapacity. Given current demographics, it is increasingly likely that individuals will suffer a legal incapacity as they age, leaving them unable to manage their affairs or make decisions for themselves. Powers of attorney and living trusts are effective ways to plan for this stage of life; failure to plan could result in an expensive and cumbersome court guardianship procedure.
2. Lack of coordination. Many people sign their Last Wills and believe they are done with their estate planning. In reality, many assets (such as retirement accounts and life insurance) carry with them their own beneficiary designations, and do not automatically follow the directions laid out in the Will. In addition, many financial accounts have payable on death or survivorship features, and pass according to those features rather than the Will. Real estate and cars can now be set up to pass outside the Will at death as well. All this means it is critical to make sure all these separate pieces are coordinated with the Will to assure your objectives are met.
1. Procrastination. Enough said.