Everyone, no matter their age, should have a will and other estate planning documents. In many situations, the plans are a complete surprise to the heirs and others entrusted with responsibilities. Here is what to advise named parties about before that tragic day.
Keeping specific information private
While I believe it is important to share the information about responsibilities, I do not think it advisable to tell how much you have or will be leaving to them. Estate plans are for when a person dies or becomes unable to care for himself or herself. As long as you are still able to function, you not only should be in control of your actions, but shouldn’t have to be accountable and put yourself in a situation where you have to explain what you do or not do, or be seemed to renege on what the children might have considered as a promise by you. Also circumstances change and what is intended today might not meet expectations tomorrow or some later date. Further children or other heirs have needs, spouses, children and responsibilities and many always seem to be short of ready cash. A needy child might not understand why a parent with significant savings [that is being conserved so their cash flow can be comfortably maintained] might not generously help them out now instead of having to wait until their parents die.
Sharing necessary details
Wills name beneficiaries either directly or in trust, or as alternates. You should tell who you’ve named and if there will be any conditions, but not any amounts. An example is that you are naming your children for primary shares, and grandchildren and some other people (such as your children-in-law, siblings or a close or needy friend or relative) for lesser amounts. You can also tell them [assuming this is the case] that some of the funds to your children will be outright and some will be in a trust to assure the funds remain in your blood line, i.e. any funds remaining when they die will go to their children and not to their spouse. You can also tell them, if that is the case, that the funds for your grandchildren will be designated for college or their wedding and a balance when they attain a certain age such as 25, 30 or 40, or whatever conditions you decide upon.
Wills also name executors and trustees. Everyone given a responsibility should be told what is expected of them, professionals they should consider engaging such as lawyers, accountants, wealth advisors, appraisers, auctioneers, collectible dealers and what first steps will be necessary.
What you should do now
From what I’ve seen, many people that want to leave money to beneficiaries in trust do not have to do anything while they are living. They can leave clear instructions in their will how the trust should be established and maintained. Setting up trusts while the grantor is living can be important to some people, particularly if you live in Florida, if you are fortunate to have such amounts that will be subject to federal estate tax or if you have a complicated financial situation where a trust can facilitate management now and later and if you are one of those, then do it, but most people do not need to do anything while they are living.
Communicating your plans
People have many other documents that leave assets to beneficiaries in ways that by-pass the will or estate. Some of these are life insurance policies and annuities, IRA, 401k, 403b and employer plans, and bank and brokerage accounts that name beneficiaries payable on death. Whatever you have, these should be coordinated with the plans you make in your will. A good estate planning attorney should be able to assist you in this. If your attorney doesn’t ask you about these, then I suggest they are not good estate planning advisors, and perhaps you should look elsewhere.
If you want to leave funds to charity after you die you can make these arrangements in your will. An alternative is to transfer some IRA funds to a separate IRA account naming the charity, a donor advised fund, or a private foundation. Whatever you decide, let your beneficiaries know about this and your wishes about how it should be handled.
If you have minor children, a guardian will need to be designated and they would have to agree. Here you can tell them any financial arrangements you will make so they would not have to reach into their own funds to care for your children. A trustee would need to be designated to handle the funds left to your children and the amounts that will be paid to the guardians. These people need to be told of your plans.
Be prepared
Prepare a listing of assets and include who to go to for disposal of collections, art, jewelry and business interests, and tell them where this info could be found. They should be with your estate planning documents. You can also include a note of where you might have hidden some cash or gold coins such as “check the tool box in the shed.” If you have a “ready cash” account that can be quickly accessed, let them know and also consider naming them in a way that they can act on that account if necessary.
Your documents will include, besides a will and designations of beneficiary forms, a financial power of attorney to handle your financial affairs, a health care power of attorney to determine your medical attention and when to “pull the plug” if you are unable to make those decisions for yourself and also who can be permitted to speak to the physicians on your behalf. Each of the care or action and responsibility provisions should be explained to those so named and they will need to agree to act accordingly if necessary. If not, then you will need to make other arrangements. Also include burial and cemetery information. It might be helpful if you prepare a memorandum of your funeral arrangements that would be available almost immediately after you pass away.
If married, both spouses should agree on what to tell the children. You should prepare a memo and a meeting should be held to go over this with them.
Conclusion
This article may seem overwhelming considering that you are thinking about what will happen after you die. However, if it seems confused now, imagine how it would be to your children if this planning wasn’t done.
Let Bernath & Rosenberg help you prepare for the future. Please call us at (212) 221-1140 if you would like a consultation on these matters.
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*We are grateful to Ed Mendlowitz, partner at WithumSmith+Brown for his guidance and material for this article.
