Preparing to Meet with Your Estate Planning Attorney
The process of estate planning can be time consuming and intimidating, forcing you to confront potentially uncomfortable issues and your own mortality. When you have completed this process and your financial affairs are in order, it can provide you with significant peace of mind. Before meeting with your attorney to discuss your estate plan, you may want to prepare yourself by asking the following series of questions. Keep in mind, there are no right or wrong answers; estate planning is a fluid process.
1. What Time Frame Should I Use When Creating My Estate Plan?
Most people will revisit and revise their estate plan multiple times, either at periodic intervals, upon major life events (e.g, birth of a child or grandchild, change in marital status, etc.), or tax law changes. We suggest keeping the process simple and focusing on a 5 to 10-year time frame for these decisions. Ask yourself, “If I were to die in the next few years, would I be happy with my decisions and the ultimate disposition of my assets to my beneficiaries?”
2. Who Should Serve as Trustee?
Given the prevalence of trusts in estate planning and the many factors that need to be considered, the selection of a trustee is one of the most important decisions you will make. While you or your spouse may be able to serve as trustee, in many situations, a third party or independent trustee is needed. You can also choose more than one person to fulfill these duties: co-trustees. This is a way to ensure that you have at least one person who has legal or financial expertise and one person who may understand your family and their dynamics. You must also choose a successor trustee in case your first choice dies or is unable to serve.
Make sure you choose wisely for these fiduciary roles. The trustee’s responsibilities include receiving assets, safeguarding accounts and assets, managing assets as a prudent investor, making discretionary distribution decisions, and filing income tax returns for the trust. They also need to be capable of identifying, understanding, and responding to the various personalities of the individual beneficiaries and interpret the grantor’s wishes. The biggest decision in designating a trustee is whether to use a family member, a professional such as an attorney or a bank.
Many people choose family members to serve as trustee. They don’t charge a fee and they generally have a personal stake in making sure the grantor’s wishes are carried out as intended. For larger trusts with multiple generations of beneficiaries, you may want to consider naming a corporate trustee to provide objectivity and continuity. Either as a sole trustee or co-trustee, an institutional/corporate trustee can help maintain family harmony and refuse inappropriate or excessive requests from beneficiaries.
3. Who Should Serve as Executor?
Being an executor is not necessarily an honor, and it can be a lot of work, so keep this in mind. Typically, there is a family member, close friend or professional who is well suited for this role. Your executor will manage the probate of your estate, often with the support of your attorney. The executor is responsible for assembling assets that were held in your own name (not in a revocable trust) at the time of your death, determining debts, assembling tax returns, and making distributions to beneficiaries as set forth in your Will. The role of an executor demands a significant time commitment and the ability to navigate legal issues and many of the administrative tasks.
4. What About Guardians for Minor Children?
For young couples, choosing the guardian for their minor children often gets in the way of even starting the estate planning process. A guardian of a minor child is responsible for seeing to the child’s personal well-being and education. This individual makes day-to-day personal decisions, such as educational or medical decisions, for the child and usually cannot be a bank or trust company. There are many considerations when choosing a guardian, including their age, values, beliefs, parenting styles, geographical location, etc. Keep in mind that your guardian and trustee(s) do not have to be one in the same.
5. Should I make gifts to my heirs during my lifetime?
A lifetime gifting program can move substantial assets out of your estate over time and enable your heirs to enjoy the use of this wealth during your lifetime. Many people are concerned, however, about the influence of wealth on their children. For this reason, your giving strategy may involve the use of trusts, which are tremendously flexible and can incorporate age parameters and distribution restrictions, and may provide you with sufficient comfort to make larger gifts. Still, the questions of “How much is enough?” and, more importantly, “How much is too much?” are commonly asked in the gifting process. Unfortunately, there is no right answer.
Lifetime gifting, like most estate planning strategies, requires you to relinquish control permanently over the use of the gifted assets. This means that assets transferred to your children can no longer be used for your benefit. In many strategies, however, you can continue to make investment decisions on behalf of your children or hire an advisor to make investment decisions.
6. Are Your Beneficiaries Ready for The Responsibility of Wealth?
If your beneficiaries are young, they may not have the maturity to be responsible stewards of your assets. In this case, what lessons in financial management and stewardship are necessary? Through the use of trusts, you can choose to delay access to assets until a predetermined age, or allow trustees to decide when your children are financially responsible. One should consider marrying estate planning with financial planning and projections, as this will give you a sense of the future dollar amounts that could be distributed at various ages.
You may also wish to consider making smaller outright gifts at a younger age to help teach children the fundamentals of money management and stewardship. Watching how your children are able to learn from and cope with smaller amounts given to them at younger ages can help you decide what protective parameters should be in place in your broader estate plans and ultimately, how much to leave to them.
CONCLUSION
Once you have thought about key persons for appointments and considered the above topics, you will be better prepared for your discussions with your attorney and be able to make more thoughtful decisions. By articulating your goals ahead of time, your estate planning process should run more smoothly.
IRS Disclosure
Neither Sandy Cove Advisors, LLC nor its employees provide tax or legal advice. Accordingly, please be advised that any discussion of U.S. tax matters contained within this communication is not intended or written to be used and cannot be used for the purpose of (i) avoiding U.S. tax related penalties or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein.