Everyone reading this needs to take a few estate planning steps. First, everyone needs a will, which you can get for free. Second, everyone needs to make sure your life insurance and retirement accounts have the correct beneficiaries. Third, many should consider working with an estate planning attorney, as we’ll discuss below.
You Need a Will
A properly constructed will ensures that your values and desires are carried out in the event you no longer can communicate them. While you may wish to give your estate to family members, your church, or a charity, without a will what happens to your assets is dictated by state law. The IRS, a nursing home, your spouse’s next spouse, or some other less than desirable entity may wind up with the lion’s share of your assets.
A will designates where you want your assets to go and, if applicable, who will take care of your children. A will usually names the guardian who will take care of your children and the trustee who will manage their assets. These roles can be the same person, or you can name different people. A will cannot specify when or for what purpose your assets should be given to your beneficiaries, so if you don’t have any other documents then the assets will be given according to your state law (Reference: Martin, Larson and Larson). For example, if you have an estate of $3 million (don’t forget that this number could be bigger than you think because it would include your life insurance) and you die without a will, your children could inherit all of that money at the age of 18 or 21, the most common ages of maturity.
There is no excuse for someone in the military – you need a will. You likely deploy, you are probably at higher risk of dying as a result, and you can get one for free at your local legal services office, which are located on almost every military base. If you have trouble locating legal assistance, you can find the office nearest your location by visiting this website. Military.com also has a great page about legal assistance you can find here.
If you just don’t trust me for some reason, there’s also an article on Military OneSource that explains the details about why you need a will.
If you have a will, upon your death the will must pass through probate. Probate is a process that can be tedious, expensive, and lengthy, depending on where you live. During probate a court validates your will and empowers the executor to use it. Assets like insurance policies and retirement accounts that name a beneficiary do not have to go through probate. Because it is expensive, public, and can be contested, probate is something to avoid if at all possible.
Keep in mind that once you have a will and have named beneficiaries for your life insurance and retirement accounts, you will need to update them if you marry, divorce, have children, your executor dies, one of your beneficiaries dies, you move to a different state, or any other significant life change occurs.
Estate Planning Attorneys
If you want to specify when or for what purpose your assets should be given to your beneficiaries or you want to avoid probate with a trust, this is where an estate planning attorney enters the picture. A common strategy is to create a trust for the benefit of your children that specifies when they are to receive your assets. For example, my estate plan gives my two children 1/3rd at the age of 20, 1/3rd at the age of 30, and 1/3rd at the age of 40. There are other options, such as granting a trustee or creating a more detailed estate plan that communicates your values to your children, such as paying for education or a down payment on a house even if they haven’t reached the age at which they’d normally get the inheritance.
You may also need an attorney to draft advance directives to specify your wishes if a medical emergency should occur. Who will be the decision maker? What are your specific life support decisions should your condition be irreversible? These documents are usually included in a comprehensive estate plan, but what isn’t included is the conversation you should have with your family. As medical professionals we all realize that these documents are rarely available when decisions need to be made, so having a conversation with your family about your wishes may be more important than having the actual documents.
You may also need powers of attorney to grant others the right to make financial decisions in the event of your incapacity. These can be “durable” (used at any time) or specific to certain conditions, such as your incapacity.
The federal estate tax, also known as the death tax, has changed many times since World War I. In 2020, a single person can pass $11.58 million to his/her heirs without paying estate tax, and those married can pass $23.16 million. Because most of us won’t have this high of a net worth, the federal estate tax is usually not an issue. Individual states, though, may also have estate or inheritance taxes that you need to plan for because many have much lower amounts that are tax free. Many states have very different laws, so make sure that any estate planning attorney you work with is familiar with the laws of your state.
The estate tax is not relevant if you die and you are passing assets to your spouse. Spouses can pass unlimited amounts without taxes. If your spouse is not a US citizen, though, the situation gets a lot more complicated.
If you have an estate worth more than $11.58 million (single) or $23.16 million (married) and you are trying to pass assets to a non-spouse, there are many different (and complicated) trusts and strategies you can adopt. The bottom line is that you’ll need the help of a qualified estate planning attorney.
The other option is to give away enough money as you approach the end of your life so that your estate is no longer above the limit. Take a look at your finances, get some idea of how much money you are likely to die with, and decide if you should start giving some of it away to charity and/or family now.
Same-sex couples should consult an attorney due to the complexities of estate planning in that scenario.
Letter of Last Instruction
A final document to consider creating is a letter of last instruction, also known as a “doomsday letter.” In today’s increasingly electronic world where financial statements are no longer delivered via US mail, family members may have difficulty locating all of the necessary items in the event of your death. Your letter would help in this case and should include (Ref: Clements):
- Funeral instructions
- A list of financial assets and liabilities, safe deposit boxes, and any professionals you deal with (financial advisors, attorneys, doctors, etc.)
- The location of key documents, like birth certificates, titles for cars, wills and trusts, tax returns, and financial statements
- Usernames and passwords for key websites
- An inventory of high value household items or possessions and who you want to receive them (if they are not included in your will)
Likely everyone reading this needs a will and to make sure that their life insurance and retirement accounts have the proper beneficiaries listed. In addition, those with more complex or large financial holdings, a desire to shape how and when they bequeath their assets, the need for trusts, or a same-sex relationship should consult with an estate planning attorney.
Clements, Jonathan. Money Guide 2015. Jonathan Clements, LLC, 2015.
Martin, Tom, Paul Larson and Jeff Larson. Doctor’s Eyes Only: Exclusive Financial Strategies for Today’s Doctors and Dentists. Brockport & Schoolcraft, LLC, 2012.